Court of Appeals of Indiana | M emorandum Decision 19A

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

.

A TTORNEY S FOR A PPELLANT Kathleen M. Meek Romy N. Elswerky Justin T. Bowen Bowen & Associates, LLC Carmel, Indiana
A TTORNEY S FOR A MICI CURIAE C OUNSEL FOR A MICI C URIAE N ATIONAL F EDERA TION OF THE B LIND AND N ATIONAL F EDERATION OF THE B LIND OF I NDIANA Sh aron Krevor

- Weisbaum Emily L. Levenson Brown, Goldstein & Levy, LLP Baltimore, Maryland
C OUNSEL FOR A MICUS C URIAE I NDIA NA D ISABILITY R IGHTS Thomas E. Crishon Indiana Disability Rights Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANACourt of Appeals of Indiana | M emorandum Decision 19A

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### J

. S

. , Appel lant

- Petitioner ,

v.


### W

. S

. , Appellee

- Respondent August 27, 2019 Court of Appeals Ca se No. 19A

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- 580 Appeal from the Morgan Circuit Court The Honorable Matthew G. Hanson, Judge Trial Court Cause No. 55C01

- 1809

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- 1731

Crone , Judge
. 

### Case Summary

[1] J.S. ( “ Mother ” ) appeals the trial court ’ s decree which dissolv ed h er marr iage to
W.S. ( “ Fat her ” ). Mother contends that t he trial cour t abused it s discretion in awarding s ole physical custody o f the parties ’ minor daughter , A.S., to Fath er based in large part up on an allegedly erron eous finding regarding Mother ’ s blindness disability

. Mother al so asserts that the trial court abused it s discretion
in declining to award child support and in denying her request for spousa l maintenance

. C on cludi ng that the trial co urt indeed made an erroneous finding
regar ding Mother ’ s dis ab ility , and as i t is uncl ear whether the trial cou rt would have awarded Father sole physical custody of A.S

. absent that erroneousCourt of Appeals of Indiana | M emorandum Decision 19A

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finding , we reve rse and remand on t he is sue o f child custody

. B e cause the child support and spousal maintenance issues are integrally tied to child c usto dy in this case , th ese issue s shoul d be also re considered upon remand accordingly.



### Facts and Proce dural History

[2] A .S. was bor n to Mother and F ather on June 29, 2013. M other and Fat her subseque ntly married on September 29, 2013

. 1 At times d uring the m arriage when b oth parties worked outside the home , Mother ’ s pare nts, A .S. ’ s m aternal grandparents , provided the majority of the child care fo r A.S

.

[3] In July 2015, Mother beca me ill and was later diagnosed with p seudotumor

c erebri. This condition rendered Mo ther legally blind. Following her diagnosis, Mother ceased w orking and became a stay

- at

- home mom and the primary car etaker for A.S

. In 201 6 , M ot her began rec e iving Social Security Disability and S up plemental Security Income based upon a finding that she was unable to work due to her disab il i ty

.

[4] The parties eventually separated , and Mothe r filed a dissolution of marri age petition on September 10, 2 018. Foll owing a pre li m in ary he aring, the trial

court entered a preliminary order aw arding the parties joint physical and legal custody of A .S. and ord ering Father to pay Mother child support in the amount of $32 per week. At the time , Mo ther reside d wit h her par ent s , and Father

1 Al thoug h A.S. was born before the part ies w e re married, th ey agree that she should be con sidered a child of th e marr iage.Court of Appeals of Indiana | M emorandum Decision 19A

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re sided with his father and step mother in residences app roximately eight to ten mile s apart

. T he trial court held a fi nal hearing o n Febr uar y 20, 2019 , and entered a dis solution decree that same day

. I n the decr ee, the court sua sponte made the foll owing relevant findings of fact regarding child custody : 2
12) The child is a fem a le and i s f ive (5) years of age. 13) Mother wishes t o have full physical and legal custody of the
c hild.

14 ) Fa ther wishes t o have full physical and leg al custody of the child. 15) The court did not hear f r o m the child a nd her opinion, at this age, would be of no value.

.... 20) [T] he court wil l find [that ] Father has a good relatio n ship with the child.

.... 22) [T] he court wil l find [that] Mother has a good relatio nship with the child.

2 3 ) T h e court heard minimal evidence about other parties around the child b ut s ince no concern s were rai sed the court must find that all r elatio nships with other family m embe rs are good ones.

2 We repla ce the trial court ’ s references to “ the wife ” and “ the husband ” with “ Mother ” and “ Fat her. ”Court of Appeals of Indiana | M emorandum Decision 19A

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2 4) A t t his time the parties live very close to one an o t her and the school the child atte nds actually ha s bus routes to both parents ’ home s. 25) The child is familiar with both ho mes in which the pare nts now live. 26) That both Mother and Father live with their parents so while liv ing situations could chang e, they would change for both part i es if/when they move out to find their own homes

. 27 ) That the child is fami liar with the community she is in as
we ll.

.... 33) Mother has a physic al dis ability that e s sent ia lly makes her legall y blind.

34 ) That Mother is currently in [ vocational] rehabilita tion to fi gure out how to be on her own and a lso be able to go back to some sort of w ork. 35) T hat th is disability was not in place prior to he r marriage and
on ly deve lop ed in the past few y ears. 36) T his disability affect s Mother ’ s ability to drive, work (at this time) and even to do daily things such as walking up sta i rs she is
u nfa miliar with.

37 ) Mother does have some support system s in p lac e with her fa mily, h owever the physical disabi lity could pr esent issues with the safety and security of the child.

.... 40) There is no evidenc e that th e ch ild has been cared for by a deCourt of Appeals of Indiana | M emorandum Decision 19A

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facto custodian

.
41 ) It is relevant that F ather works during the days and Mother does not at thi s time, however, l i ke Mother, has family in plac e to a id with cus tody.

4 2) Likewise, it is believed [that] Mother will be wo rki ng within the next si x mo nths to [a] year. 43) After considering the factors for custody the court could have been con vinced to con tinue joint ph ysical cus tody of this chi ld had either party requested it. 44) However, in light of the positions of both pa rties, joint physical cus t ody at this time is not likely to work. 45) Therefore, taking into account the factors

... and in
co nsidera tion of the be st interests of the child, the court will find that Fat her s hall have full physical custo dy of the child.
Appe al ed Order at 1

- 4.

[5] Mother w as g ranted parent ing time with A.S. in accor dance with the India na Parenti ng Time Guidelines, subject to the addition of o ne overnight per week , and the order provided that Mother could provide daycare for A .S. during the

summe r while Father is working. D espite some communication issues between the partie s, the court ordered that the par ties would conti nue havi ng joint legal

cus tody o f A.S. as p rovided in the preliminary order . The trial court decline d to award any child suppo rt and further denied Mother ’ s request for incapacity
spous al maintenance

. This appeal ensued. We wil l provide additional facts in

our discussio n wh ere necessary.Court of Appeals of Indiana | M emorandum Decision 19A

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### D iscuss ion and Decision

[6] We begin by no ting that Fa t her has not filed an appellee ’ s brief

. When an appellee fails to su bmit a brief, we do not undertake the bu rden of developing arguments for the appellee, and we apply a less st ringent s ta ndard of review.
M .R. v. B.C. , 1 20 N.E.3d 220 , 223 (Ind . Ct. App. 2 0 1 9 )

. Thus, we may reverse if the appell ant establishes prima facie error, which is error at first sight, on first appearance, or on the face of it. Id

. T his rule reliev es us o f the bur den of controverting argum ents advanced in favor of rever sal where th a t burden properly rests with the appelle e. Id. In any event, we are still obligated to correctly apply the law to the facts in the record in or der to dete rmine wh ether reversal is requi red. Id

.

[7] T he trial court h ere entered findings and concl usions in su p port of its dissolution decree . I t does not appear from the record that either party requested s uch find ing s

. When the trial court enters find ings sua sponte, the specific find ings cont rol only as to the issues they cover, while a general ju dgment stan d a rd applies to any issue upon which the co urt has not found. Montgome ry v. Montgomery , 59 N.E.3d 343, 349 (In d. Ct. App. 2016), trans. denied ( 20 17)

. The specific findings will n ot be set aside unless they are cle arly

erroneous. Collyear

- Bell v. Bell , 105 N.E.3d 1 76, 184 (Ind. Ct. App. 2018)

. A finding is clearly erroneous when th ere are no facts or inferences drawn the refrom that support it. Id

. In reviewing the trial court ’ s f indings, we neither reweigh the ev idence nor judge the credibility of the witnesses. I d

. Clear errorCourt of Appeals of Indiana | M emorandum Decision 19A

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is “that which l eaves us with a definite and firm con viction that a mistake has been made.” M

asters v. Masters , 43 N.E.3 d 570, 575 (Ind. 2015).



### S ection 1

– Mother has established prima fa cie error regarding

the trial court ’ s phy si cal custody decision
.
[8] Mother asser ts that the tria l court abused it s discretion in a warding Father so le ph ysical custo dy of A.S. Specific ally, Mother asserts that the trial cour t ’ s decisio n was based, in large pa rt, o n a clearly erroneous finding of fact that impro per ly presum ed that her disabili ty c ould present a s afety and security risk

to A.S

. We agre e with Mother.

[9] Our stan da r d of review of initial child custody determinations is well s ettled

. Determination s regarding child custody fall within the trial court ’ s sound discretion. Swadner v. S wadner , 897 N.E.2d 966, 974 (Ind. Ct. App. 200 8 ). In an in itial cus tody determinat ion , both p ar ents are pres umed e qually entitled to custod y
. Ham ilton v. Hamilto n , 103 N .E.3d 690, 694 (Ind. Ct. App. 2018), trans

. denied

. The t rial court shall determine custody and enter a custody order in accorda nce with the best interests of the chil d by co nsid ering all relevan t factors, includ ing:
( 1) The age an d sex of the chi ld. (2) The wishes of the child ’ s parent or parents. (3) The wishe s of the child, with more c onsideration given to the child's wishes if the child is at least fourteen (14) yea rs of age. (4) The interaction and interrelationship of the chil d with: (A) the child ’ s parent or parents; (B) the child ’ s sibling; and ( C) any other person who ma y significantly affect the child ’ sCourt of Appeals of Indiana | M emorandum Decision 19A

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best interests. (5) The child ’ s adjustment to t he child's: (A) home; (B) school; and (C) community. (6 ) The mental and physica l health of all individuals involved. (7) Evidence of a pa ttern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custo dian, and if the evidence is sufficient, the co urt sh all consider the factors described i n section 8.5(b) of this chapter.

Ind. Code § 31

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- 2

- 8. In deference to the trial court ’ s proximity to the issues ,
we do not reweigh the evidence or deter mine the credibilit y of witnesses. Hughes v. Rogusta , 830 N.E.2d 898, 902 (Ind. Ct. App. 2005)

. Instead, we consider the
evidence most fa vorable to the judgment, with all r easonable inferences drawn in favor of the judgment. Id

. We will affirm the trial court ’ s custody determination absent an abuse of discretion. S w a dner , 897 N.E.2d at 974

.

[10] Here, in cons idering factors (1) through (5) and factor s (7) 3 and (8) , the tria l

c ourt specifica lly found that either th ose fact or s did not apply under the ci rcumsta nces presented or that Mother and Father w ere essent iall y on equ al footing when it came to physical custody and th e best interests of A.S.

3 Although t he tri al court not ed one prior d omestic violence incident between Mother and F ather where Mother was charged but able to avoid prosecut ion by parti cipat ing in a diversion pro gram , se e Appeal ed Order ¶ 38 , the trial court mad e no finding r ega rding “ a patter n of d omestic or family violence by either parent ” as t here was no evidence pr esented of such a pattern.Court of Appeals of Indiana | M emorandum Decision 19A

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However, in considering factor (6 ), the mental and physi cal health of all indiv iduals involved, the trial court foun d in re levant part :
33) Mother has a physical disability that es sentially makes her lega lly blind.

.... 37) Mother does have some support systems in place with her family, h owever the ph ysical di sability could present i ssue s with th e safety and security of the child.
Appeal ed Order at 3

- 4.

[11] Upon review of the record, we agree with Mother that there is no evidence to
sup port Finding 37. There was mi nimal evidence presented as to the onset of Mother ’ s disab ilit y a s well as general testimony regarding her pro g re ss and adaptations to manage her disability and to eventually beco me employable

. As
f or the safety and security of A. S ., Mother and Father each testified and agreed that there were ab solutely no safety concerns regar ding Mother ’ s legal blind ness and her ability to parent and care for A.S

. There was no other evidenc e presented regarding Mo ther ’ s disability as it related to the best inter ests of A. S

.

[12] T his C ourt has pre vious ly addressed the role of a parent ’ s disability in the analysis of the best interests of the child

. In re Marriage of Lang , 668 N.E.2d 285,
288

- 89 (Ind. Ct. App. 1996)

. I n Lang , we approved of the reasoning of a California Supreme Court case, In re Marria ge of Carney , 598 P.2d 36 ( Cal. 1979), which determin ed that it was imp ermissible for a trial court to rely on aCourt of Appeals of Indiana | M emorandum Decision 19A

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parent ’ s physica l disability “as p rima facie evidence of t he person ’ s unfitness as a parent or of probable d etriment to the child; rather in al l cases the court must view the handicapped person as an individual and the f amily as a whole.” Id . at 42

. T he Carney c o urt explained,

To achieve this, the court should i nquire into the person ’ s actual and potential physical capabilities, learn how he or she has adapted to the disability and manag es its problems, consider how the other members of the household have a djusted thereto, and take into ac count the special c ontri butions the person may make to the family despit e or even because of the handicap.

I d

. Weighing these and all other relevant fac tors, the court must carefully de termine whether the parent ’ s disab ling condition will in fact have a “s ubstantial and adverse e ffect on the best interest of the child. ” Id

. ; see C lark v.
Madden , 725 N.E.2d 100, 1 05 (Ind. Ct . App. 2000) ( approving of and ad opting Carney ’ s reasoning)

.

[13] It is apparent that rather than make a careful determination of wh ethe r Mot her ’ s disability will in fact have a n adverse effect on the best interests o f A.S., the trial court here impr operly pres umed that it c ould without any

s upporting evidence

. Because there was no evidence cited to or seemi ngly relied upon by the trial court th at otherwise ti p ped t h e scales in favor of F at her being awarded sole physical custod y , we cannot say that t he find ings as a who le support the court ’ s u ltimate conclusion that an award of sole physical custodyCourt of Appeals of Indiana | M emorandum Decision 19A

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to Father was in A.S. ’ s best inter ests

. 4 In other words, Mother has established prima facie error as we are not confi d ent that the trial court would have reac h ed the same conclusion absent the clearly erroneous finding and presumption regarding her disability

. 5 Accordingly , we reverse the court ’ s p hysical custody order an d remand for the court to reconsider the issu e in light of our decision. Upon rem and , we i nstruct the court to enter only proper findings supported by the evidence a s well as to ent er additional specific findings that better a rticu late its physical custod y determination

. 6


### S ection 2

– The trial co urt must re consider child support and

spous al maintenance on rem and
.
[14] B ecause a determination of child support is integrally tied to th e ph ys ical

custo dy issue , an award of chil d support m ust be also re considered up on remand. Howe ver, based upon its prior minimal fin dings on this issue , we believe that some guidance wo uld be useful

. It appears that both parties

4 The trial cour t did note Father ’ s allegation that Mother drink s alcohol often and that her alcohol use was at the root of their o ne instance of do m es tic violence , as it caused them to “ a rgue about trifle things. ” Ap pealed Or der at 3. However, t he re was n o evidence presented, a nd the trial court made no f inding , that Mother ’ s alcohol use is currently excessive and/ or pose s any thre at to th e safety o f A. S. In other words, it does not appear that the trial court relied on Moth er ’ s alcohol use in mak ing it s phys ical custody determination.

5 Because we conclude that the trial court ’ s finding in this regard is clearly erron eous, we decl ine to address Mot her ’ s a ssertion that the trial court ’ s cu stody order runs afoul of the Indiana Civil Rights Law and discr imin ates aga inst her in violation of the Americans with Disabil ities Act

. 6 T he trial court stated that it would have been inclined to award joint phys ical c ustody had either party requested it

. T o be clear, the trial court is not prec luded from enteri ng a cu stody ar rangemen t not specifically advanced by either party so lo ng as that custody arrangement is in the child ’ s best inter ests

. Richard son v. Ri chards on , 34 N.E.3d 696, 704 (I n d. Ct . App. 2015). Nevertheless, we acknowledge the trial court ’ s pro ximity to the issues and re cognize that the court had , and may still have upon remand , other valid reasons f or de ciding that joint physical cus tody i s not in A. S. ’ s best in terests.Court of Appeals of Indiana | M emorandum Decision 19A

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requested an award of child support in con junctio n with their requests for physic al custody

. Mother also requ est ed incapacity spousal maintenance.
A fter awarding sole physical cus tody of A

. S. to Fathe r , the trial court simply foun d that “ there will be no child suppo rt ordered. ” Appe aled Orde r at 5. The court further stated , “ in lie u of no c hild support, t he c ourt will not order any spousal mainten ance as well , ” reasoning “ [ e]ssentially th ese amounts would

canc el each ot her out. ” Id . Th ese sparse findings do not pas s muster.

[15] We observe as a general matter that d ecisions regarding child support rest withi n the sound discretio n of the trial court

. Taylor v. Taylor , 42 N.E.3d 981 , 986 (Ind. Ct. App. 2015), trans. denied . Indiana Code Section 31

- 16

- 6

- 1 provides a list of relevant fact ors a trial court shoul d consider in making a ch ild support determinati on a nd our supreme court has promulg ated t he Indiana Child Support Guidelines and provide d worksheets to aid the trial court

. Indeed, a calculation made pursuant to t h e C hild Support G uidelines is presumed val id. In re Marriag e of Duc kworth , 989 N.E.2d 352, 354 (Ind. Ct. App. 2013)

. But this Court “ cannot review a support order to determine if it complies with the guidelines unless the order reveals the basis for the amount

awar ded.” Van denburgh v. V ande nburgh , 916 N.E.2d 723, 728 (In d . Ct. App. 2009). “Su ch revelati on could be accom plished either by specific findings or byCourt of Appeals of Indiana | M emorandum Decision 19A

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incorporation of a proper worksheet.” Cobb v. Cobb , 588 N.E.2d 571, 574 (Ind. Ct. App. 1992)

. 7

[16] Simply put, f

rom what the trial cour t d id here , we are wholly unab l e to determine w hether t he court co mplied with the Child Sup port Guidelines , and therefore re consideration an d clarification of the child support order (or lack thereof) is appropriate

. See, e.g. , Dye v. Young , 655 N.E.2d 549, 5 51 (Ind. Ct. App. 1995). Ac cordingly, on remand, in addition to reconsidering child custody , the trial court must reco nsider its order r egarding child support and enter an order reveal ing the bas is for the amount , even if th at amount is zero , awarded to either party

. Moreover, b eca use the trial court ’ s de nial of Mother ’ s
req uest for spousal maintenance appears to have be en based primarily upon its decision to award no child support rathe r than upon a consideration of Mother ’ s incapacity , the trial court must clarify it s dec isio n reg arding spousal maintenan ce in tandem with its reconsideration of chi ld support . We note that, while an aw ard of spousal mainten ance is a discretionary decision , a trial court

“ should normally award in capacity maintenance ” if it finds a sp ouse to be

“ physically or menta lly in capa c itated to the extent that the ability of that spou se
t o support himself or herself i s materially affected [

. ] ” Cannon v. Cannon , 758 N.E.2d 524, 527 (Ind. 2001)

.

7 A lthough Mother submitted a child support worksheet t hat the tr ial cou rt clearly u sed to support its pre liminary award of child support to Mother , the trial court did not reference it o r incorporate the work sheet i nto its disso lution decree

.Court of Appeals of Indiana | M emorandum Decision 19A

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[17] In sum, w e find prima facie error and reverse the tr ial court ’ s di s so l ution decree as it rela te s to physical custo dy , child support, and spousal mai ntenance , and

we remand for re consideration and clarification of these issues

. The tr ial

court ’ s dissolution decree is affirmed in all other respects

.

[18] Affirmed in part, revers e d in part, and remanded.

Baker, J., and Kirsch, J., concur.