Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Janet P. Hixson

Charlotte, North Carolina

IN THE

COURT OF APPEALS OF INDIANA

Janet P. Hixson,

Appellant-Petitioner,

v.

Doyle L. Silvers,

Appellee-Respondent

August 30, 2017

Court of Appeals Case No.

85A05-1701-DR-138

Appeal from the Wabash Superior 

Court

The Honorable Robert R. 

McCallen, III, Special Judge

Trial Court Cause No.

85D01-0706-DR-207

May, Judge.
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[1] Janet P. Hixson (“Mother”) appeals the trial court’s order granting Doyle L. 

Silvers (“Father”) custody. We affirm.

Facts and Procedural History

[2] Mother and Father married in 1999. Two children were born of the marriage, 

A.L.S.,1 born May 29, 2000, and L.S., born February 12, 2005 (collectively, 

“Children”). The marriage was dissolved on April 21, 2009. Mother 

subsequently married Richard Hixson (“Stepfather”) and moved to North 

Carolina. Father lives in Indiana.

[3] The trial court initially awarded Mother custody of Children. On July 29, 

2013, Father filed a petition to modify custody. Mother filed a verified 

information on contempt on October 23, 2013, and Father filed the same on 

December 27, 2013; June 10, 2014; and June 30, 2014. Both parties also filed 

claims for Guardian ad Litem (“GAL”) fees. The trial court held a hearing on 

all matters on September 16 and 18, 2014. 

 

1 In the trial court’s order, A.L.S. is referred to as either his first or middle name, as he is called by a different 

name based on which parent has custody. The trial court noted in its order:

While at his Mother’s home, the parties’ son is referred to as [L.]. While at his Father’s home, he is 

referred to as [A.]. Anyone put in this boy’s situation would not know who he is, where his loyalties 

should lie, and would probably not like himself very much. 

(App. at 75.) We refer to him as A.L.S. throughout.
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[4] In an order on September 18, 2014, the trial court “reluctantly awarded 

temporary custody of the parties’ minor children to Father.” (App. at 72.) In 

doing so, the trial court entered detailed findings and concluded:

34. Although it is a close call, the Court finds that a modification 

of the prior custody order, by awarding custody to Father 

temporarily, subject to further hearing, would be in the best 

interests of the parties’ minor children. The primary reason for 

this finding is the fact that conflict in the Hixson home is 

impacting the parties’ son in a profoundly negative way.

35. There have also been substantial changes in the statutory 

factors[2

] listed above as follows:

(a) [A.L.S] is now 14, he is now five years older than he 

was when custody was awarded to Mother. He would 

benefit from having a more significant relationship with 

Father as he struggles through the difficulties of 

adolescence. This is particularly true given his 

relationship with [Stepfather].

(b) [A.L.S.] is now 14 and wants to live with his Father.

(c) The relationship between [A.L.S.] and [Stepfather] has 

deteriorated to the point that the boy is running away and 

making false 911 calls to avoid returning to the home.

(d) There is evidence of a pattern of domestic violence in 

[Mother’s] home. Even if it is not physical violence, as 

 

2 This refers to Indiana Code section 31-17-2-8, which requires the trial court to consider eight factors when 

modifying child custody.
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[Mother and Stepfather] maintain, the level and frequency 

of their disputes is profoundly disrupting the lives of the 

parties’ children and is impeding their emotional 

development.

36. The Court therefore modifies its prior custody order and now 

awards temporary custody of the parties’ minor children, 

[A.L.S.] (born May 29, 2000) and [Ly.S.] (born Feb. 12, 2005) to

[Father], effective September 22, 2014, subject to further order of 

the Court.

(App. at 76-7) (footnote in original omitted, footnote added). The trial court 

ordered Father to enroll Children in counseling, set forth a schedule for holiday 

visitation subject to the GAL’s recommendations, and required the parties to 

participate in monthly status hearings.

[5] After the trial court’s order, the parties continued to have issues communicating 

and disagreements regarding holiday visitation. Near the end of 2014, a 

protective order was issued restricting Stepfather from having contact with 

A.L.S. On April 10, 2015, the Department of Child Services (“DCS”) filed a 

petition to declare Children were in need of services (“CHINS”) following a 

physical altercation between A.L.S. and Father. Children were removed from 

Father’s home and placed in foster care for a short time because Children could 

not reside with Mother due to the active protective order involving Stepfather 

and A.L.S. When the CHINS case concluded, Children were returned to 

Father on April 1, 2016.
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[6] On November 17, 2016, the trial court held a hearing on modification of 

permanent custody of Children. The same day, the trial court issued an order 

awarding permanent custody of Children to Father and requiring Mother to pay 

child support.

Discussion and Decision

[7] We first note Mother proceeds in this appeal pro se. A litigant who proceeds pro 

se is held to the same established rules of procedure that trained counsel is 

bound to follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), 

trans. denied, cert. dismissed. One risk a litigant takes when she proceeds pro se is 

that she will not know how to accomplish all the things an attorney would 

know how to accomplish. Id. When a party elects to represent herself, there is 

no reason for us to indulge in any benevolent presumption on her behalf or to 

waive any rule for the orderly and proper conduct of her appeal. Foley v. 

Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).

[8] Additionally, we note Father did not file a brief. When an appellee does not 

submit a brief, we do not undertake the burden of developing arguments for 

that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). 

Instead, we apply a less stringent standard of review and may reverse if the 

appellant establishes prima facie error. Id. Prima facie error is “error at first sight, 

on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 

216, 221 (Ind. Ct. App. 2006).
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[9] When a party requests modification of custody, we review the court’s decision 

for an abuse of discretion, because we give wide latitude to our trial court 

judges in family law matters. Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind.

Ct. App. 2010). A petitioner seeking modification has the burden to 

demonstrate the existing custody arrangement needs to be altered. Id. As we 

undertake our review, we neither reweigh the evidence nor assess witness 

credibility. Id. Rather, we consider only the evidence and inferences most 

favorable to the trial court’s judgment. Id.

[10] Our legislature has defined the circumstances under which a custody order may 

be modified:

(a) The court may not modify a child custody order unless:

(1) the modification is in the best interests of the child; and

(2) there is a substantial change in one (1) or more of the 

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

applicable, section 8.5 of this chapter.

(b) In making its determination, the court shall consider the 

factors listed under section 8 of this chapter.

Ind. Code § 31-17-2-21 (“Section 21”). The factors the court must consider 

under Ind. Code § 31-17-2-8 (“Section 8”) include:

(1) The age and sex of the child.

(2) The wishes of the child’s parent or parents.
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(3) The wishes of the child, with more consideration given to the 

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

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

(A) the child’s parent or parents;

(B) the child’s sibling; and

(C) any other person who may significantly affect the 

child’s best interests.

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

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either 

parent.

(8) Evidence that the child has been cared for by a de facto 

custodian, and if the evidence is sufficient, the court shall 

consider the factors described in section 8.5(b) of this chapter.

[11] The trial court concluded “many substantial and continuing changes have 

occurred since the initial award of custody to [Mother], making such permanent 
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award of custody to [Father] in the children’s best interests.” (App. at 63.) To 

support that conclusion, the trial court found:

In that [Mother] chose to call the parties’ son, [A.L.S.], as a

witness, the Court declined to conduct an in-camera interview of 

either [A.L.S.] or [L.S.]. The Court believes that placing [A.L.S.]

on the witness stand was not in his best interests and, frankly, 

showed a callous disregard for his well-being. He was clearly 

conflicted by being called as a witness. While he expressed some 

interest in living with [Mother], at least for awhile to help her, it 

was for all the wrong reasons. Clearly the [Mother] has laid a 

guilt trip on [A.L.S.].

The Court declines to order any unsupervised parenting time or 

contact between [Mother] and the children. Instead, the Court 

orders the parties to continue counseling with Ed Pereria, with 

the goal of expanding [Mother’s] contact with the children and 

ultimately full parenting time. Had the [Mother] kept her word 

that she was no longer contesting custody, which she gave in a 

counseling session on or about October 4, 2016, and further 

engaged in the joint counseling to address her contact and 

parenting time as was also discussed, progress toward this goal 

would likely have already occurred. Instead, that opportunity 

has been wasted.

(Id. at 63-4.)

[12] Mother argues the trial court’s decision to award Father permanent custody of 

Children is not supported by the evidence. However, her argument consists of 

statements unsupported by the record, e.g., “Depriving [L.S.] of contact with 

her Mother during this important developmental period is not in her best 

interests,” (Br. of Appellant at 30); strategically selected statements by A.L.S. 
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taken out of context; and criticisms of the trial court’s findings, e.g., “[the

court’s] observations are not based on evidence but are a byproduct of one’s 

prejudice and agenda.” (Id. at 33.) Her contentions are invitations for us to 

reweigh the evidence and judge the credibility of witnesses, which we cannot 

do. See Julie C., 924 N.E.2d at 1256 (appellate court does not reweigh evidence 

or judge the credibility of witnesses).

[13] There was sufficient evidence to support the trial court’s decision. Father was 

granted temporary custody because of allegations of abuse by Stepfather. After 

the temporary change in custody, A.L.S. began attending counseling with 

Pereria. Father participated in counseling on a regular basis, Mother did so 

sporadically. Mother and Stepfather did not present evidence they had done 

anything to address the abuse allegations, such as attend counseling. Father 

and A.L.S. were the subject of a DCS investigation following a physical 

altercation between Father and A.L.S., but that has since been resolved and 

Father and A.L.S. were working through those issues in counseling. Father 

reported both Children were on the honor roll at school and A.L.S. was 

involved in extracurricular activities. We conclude the trial court did not abuse 

its discretion when it awarded Father custody of Children.

3

 See In re Marriage of

 

3 Mother also argues the trial court made several errors in computing the amount of child support she owed 

Father. Some of these errors she claims to have presented to court as part of her motion to correct errors. 

However, she did not include a copy of that document in the record, so we are unable to determine if the trial 

court erred by denying her motion. Further, the record we have before us does not indicate Mother presented 

argument regarding the amount of child support at the hearing on modification. Thus, she has waived the 

issue of the amount of child support for failure to provide a complete record and for failure to present the 

issue regarding the trial court’s computation of the child support amount before the trial court. See Ind. App. 

R. 46(A)(8)(a) (argument must be supported by citations to relevant parts of the record); see also Leone v. 
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Sutton, 16 N.E.3d 481, 486 (Ind. Ct. App. 2014) (modification of custody 

affirmed because evidence of Section 8 factors supported modification of 

custody to father).

Conclusion

[14] The trial court did not abuse its discretion when it awarded permanent custody 

to Father. We affirm.

[15] Affirmed.

Brown, J., and Pyle, J., concur. 

 

Keesling, 858 N.E.2d 1009, 1014 (Ind. Ct. App. 2006) (failure to provide cogent argument or citations to 

relevant parts of the record waives the issue for appellate review), trans. denied; and see Van Winkle v. Nash, 761 

N.E.2d 856, 859 (Ind. Ct. App. 2002) (party’s failure to raise issue before the trial court results in waiver of 

that issue on appeal).

Similarly, Mother contends the trial court committed several procedural errors, including: “Not providing 

Reports as required,” “Withholding Evidence,” “Delay in hearing,” and “Coercion.” (Br. of Appellant at 

18.) Mother did not raise these issues before the trial court. They are waived. See Van Winkle, 761 N.E.2d at 

859 (party’s failure to raise issue before the trial court results in waiver of that issue on appeal).