Court of Appeals of Indiana | Memorandum Decision 20A04-1606-JP-1225 | February 22, 2017 Page 1 of 15

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

Heidi J. Cintron

Center for Legal Justice

Elkhart, Indiana

ATTORNEY FOR APPELLEE

Robert J. Palmer

May • Oberfell • Lorber

Mishawaka, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Lisa Baushke,

Appellant-Respondent,

v.

Eric Miller,

Appellee-Petitioner.

February 22, 2017

Court of Appeals Case No.

20A04-1606-JP-1225

Appeal from the Elkhart Superior 

Court

The Hon. Stephen R. Bowers, 

Judge

Trial Court Cause No.

20D02-1305-JP-233

Bradford, Judge.
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Case Summary 

[1] Appellant-Respondent Lisa Baushke (“Mother”) and Appellee-Petitioner Eric 

Miller (“Father”) are the parents of D.M., who was born on April 5, 2012. At 

the time of D.M.’s birth, Mother and Father were in a relationship and living 

together. On June 17, 2013, Mother and Father entered into a joint stipulation 

awarding the parties joint legal and physical custody of D.M. Sometime in 

2015, the relationship deteriorated, and Mother moved out of their shared 

home, taking D.M. with her. Mother and Father both sought custody of D.M. 

On March 30, 2015, the trial court appointed a Guardian Ad Litem (“GAL”). 

[2] The trial court conducted an evidentiary hearing on January 5, 2016 and 

January 13, 2016. On May 3, 2016, the trial court issued an order awarding 

Father sole legal and physical custody of D.M., subject to Mother’s right to 

parenting time. The trial court also ordered that D.M. receive counseling. The 

trial court, however, did not address child support at that time and asked that 

the parties exchange information necessary to calculate child support. On 

appeal, Mother1raises the following restated issues: whether there is evidence to 

support the trial court’s order modifying custody; and whether the trial court 

should have set two effective dates for the child support obligation, from 

January 21, 2015 to May 20, 2016 and May 20, 2016 going forward. Father 

also raises the following issue on appeal: whether the case should be remanded 

 

1 Mother did not submit an appendix with her appellate brief. 
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to the trial court to consider an award of appellate attorney’s fees in favor of 

Father. Because there was sufficient evidence to support the trial court’s 

findings regarding the custody modification, we affirm the trial court’s order. 

We will not rule on the issue regarding child support as we lack jurisdiction 

over that particular issue. Additionally, we decline to remand the case back for 

a determination regarding Father’s fees because the facts of this case do not rise 

to the level to merit the award of appellate attorney’s fees. 

Facts and Procedural History 

[3] The trial court’s order instructs us to the underlying facts and procedural history 

leading to this appeal: 

[Mother] gave birth to D.M. on April 5, 2012. [Father] filed a 

Petition [t]o Establish Paternity on May 24, 2013. On June 17, 

2013, the parties submitted a joint stipulation awarding the 

parties joint legal custody over their son, D.M., with no 

designation of primary physical custody. At the time the 

stipulation was entered into, the parties resided together. By 

early 2015, the relationship between the parties had deteriorated 

leading to their separation. Both sought custody of D.M. The 

court on March 30, 2015, appointed attorney Pauline Micholas 

as Guardian Ad Litem. The conflict between the parties has 

been unabated since that time. There have been multiple 

contempt filings and requests to modify the parenting time 

arrangement. 

****

There is no evidence in this case that the child has been cared for 

by a de facto custodian. D.M. is a four-year old boy, who loves 
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both of his parents, and who appears to enjoy a generally positive 

relationship with both. The wishes of the parents offer no 

meaningful guidance to the Court in deciding this case. Each 

parent wants full custody of D.M. Each parent would prefer that 

the other parent was not in the picture. . . .

When the parties appeared for a hearing on August 31, 2015, 

they advised the Court that they had reached a stipulation 

addressing Father’s pending motions. Unfortunately, Mother 

was unwilling to sign the written stipulation when it was 

prepared. The conflict between the parties continued 

accompanied by the filing of additional contempt pleadings, a 

request for a psychological evaluation of Mother, and disputes 

over where the child would attend preschool. 

The Court conducted an extensive evidentiary hearing on 

January 5, 2016, and January 13, 2016. Following the 

evidentiary hearing, the Court was asked to address the lack of 

cooperation between the parties. In response the court ordered 

the parties to engage in a high conflict parenting class, and to 

engage the child in therapy. . . . 

Appellee’s App. Vol. II, pp. 18-19. 

[4] On May 3, 2016, the court issued the following order which provides, in part, 

as follows: 

After considering the evidence and the arguments made by the 

parties in light of the history of this case, the Court finds that 

joint legal custody is inappropriate. The Court further finds [that 

it] is in the best interest of the child to be placed in the care and 

custody of his Father, subject to Mother’s right to parenting time 

as set out in this Order. The Court grants Mother parenting time 

alternate weekends from 6:00 PM on Friday until 6:00 PM on 

Sunday. Mother is also awarded one (1) overnight of parenting 

time each week. Mother is responsible for taking the child to his 
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regular preschool during her midweek parenting time periods. 

The Court directs that holidays and other special times with the 

child be divided as provided in the Indiana Parenting Time 

Guidelines. Both parties are ordered to comply with the 

provisions of the Parenting Time Guidelines calling for 

additional parenting opportunities to be offered to the 

noncustodial parent. The parties are encouraged to make 

adjustments to the parenting schedule to reasonably 

accommodate the respective schedules of the parties. Any such 

adjustment[s] are to be made in advance, in writing, and, except 

in cases of emergencies, a reasonable time before the scheduled 

parenting time. Although other may be used to provide 

transportation of D.M. in order to change custody of the child, 

communication should be directly between the parties. The 

stepmother’s direct contact with Mother should be limited. 

Appellee’s App. Vol. II, pp. 20-21. 

[5] On appeal, Mother raises the following restated issues: whether the trial court 

abused its discretion when it modified custody of the minor child, D.M. and 

whether the trial court should have set two effective dates for the child support 

obligation. Father also raises the issue of whether the case should be remanded 

to the trial court to consider an award of appellate attorney’s fees in his favor. 
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Discussion and Decision2

I. Standard of Review 

[6] “When reviewing judgments with findings of fact and conclusions of law, 

Indiana’s appellate courts ‘shall not set aside the findings or judgment unless 

clearly erroneous, and due regard shall be given to the opportunity of the trial 

court to judge the credibility of the witnesses.’” Best v. Best, 941 N.E.2d 499, 

502 (Ind. 2011) (quoting Ind. Trial Rule 52(A)). “Appellate judges are not to 

reweigh the evidence nor reassess witness credibility, and the evidence should 

be viewed most favorably to the judgment.” Id. Findings are not considered 

clearly erroneous unless “the record contains no facts to support them either 

directly or by inference.” Id. 

Appellate deference to the determinations of our trial court 

judges, especially in domestic relations matters, is warranted 

because of their unique, direct interactions with the parties faceto-face, often over an extended period of time. Thus enabled to 

assess credibility and character through both factual testimony 

and intuitive discernment, our trial judges are in a superior 

position to ascertain information and apply common sense, 

particularly in the determination of the best interests of the 

involved children.

Id. 

 

2 Mother raises another issue on appeal: whether the trial court erred in calculating the number of parenting 

time days that Father lost. There is evidence to support the trial court’s determination that Mother interfered 

with approximately 82 days of Father’s parenting time. Moreover, even if the court’s determination was not 

accurate, the outcome of the case would not have changed as there is ample evidence to support the trial 

court’s decision to award Father sole legal and physical custody. 
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II. Whether the Trial Court Erred in Granting Father Sole 

Legal and Primary Custody

[7] Mother challenges the trial court’s modification of legal and physical custody 

on the ground that there was no evidence to support that such decision was in 

the best interest of the child. Specifically, Mother argues that the trial court 

disregarded the evidence that she presented regarding her ability to parent her 

child, the GAL’s report did not reflect the totality of the circumstances and 

should have been disregarded by the court, the trial court improperly found that 

Father was emotionally stable, and the trial court improperly considered the 

fact that Father entered into a mentor-mentee relationship to help him become 

a better father and person. In support of her assertions, Mother points to 

various items of evidence that she believes favor her position and disfavor that 

of Father. Based upon the content of her arguments, Mother is not arguing that 

there is no evidence to support the trial court’s decision, but rather she is 

asserting that the trial court improperly weighed and evaluated the evidence.

[8] “[O]n appeal it is not enough that the evidence might support some other 

conclusion, but it must positively require the conclusion contended for by the 

appellant before there is a basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 

(Ind. 2002). “We cannot weigh the evidence but must consider it in a light 

most favorable to the judgment.” Best, 941 N.E.2d at 503. Moreover, “[a]n 

appellate court may not substitute its own judgment for that of the trial court if

any evidence or legitimate inferences support the trial court’s judgment.” Id. 
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The court made extensive findings in its order supporting its decision to award 

Father with sole legal and physical custody of D.M.: 

Mother has been diagnosed with anxiety and depression. . . . The 

court finds that on at least one occasion, Mother called the 

paternal grandmother and expressed “I am going to hurt myself 

[or] my children.” When grandmother arrived at the [Mother’s] 

home a short time later, [Mother] left in her car, returning hours 

later. When [Mother] returned to her home she remained distant 

and unengaged with [D.M.]. In short, the Mother has evidence 

of a mental instability that makes her a potential threat to the 

welfare of the child. 

In addition to her mental health issues, Mother has demonstrated 

poor judgment at a number of levels. Her insistence on changing 

the child’s preschool even though the change resulted in 

unnecessarily interfering with the child’s sleep is just one 

example. It is clear to the Court that the decision to enroll the 

child in a daycare where Mother was working on a part-time 

basis was motivated by Mother’s [self-interest] rather [than] the 

best interests of the child. Mother’s action unnecessarily

interfered with the child’s normal routine. Mother compounded 

the problem by making negative comments to the child about the 

original preschool. More deeply concerning is the fact that 

Mother suggested that he should not “use the potty”, not only 

causing embarrassment to the child but jeopardizing his ability to 

stay at the original preschool. . . . 

****

Notwithstanding the dismal state of the relationship between the 

parties, both parties enjoy a good relationship with their son. 

The evidence presents a picture of two parents who loathe one 

another, but adore their son. The evidence also is overwhelming 

that the child loves his parents and wants to spend time with both 

of them. The child also enjoys positive relationship[s] with 

members of the extended family of each parent. Father has 

remarried, and the child has a strong positive relationship with 

his stepmother. The fact that the child is socially well-adjusted is 
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further supported by the positive reports from the child’s 

preschool. 

After considering the evidence and the arguments made by the 

parties in light of the history of this case, the Court finds that 

joint legal custody is inappropriate. The Court further finds [that 

it] is in the best interest of the child to be placed in the care and 

custody of his Father, subject to Mother’s right to parenting time 

as set out in this Order. . . . 

Appellee’s App. Vol. II, pp. 19-20. 

[9] The trial court made these findings, in part, after considering the GAL’s report. 

In the report, the GAL reported hearing from multiple sources that Mother and 

Father are incapable of parenting D.M. together without extreme conflict and 

drama. Several of the witnesses that the GAL interviewed also expressed 

concern over the level of care that D.M. receives while he is in Mother’s care. 

Specifically, witnesses mentioned concerns regarding whether Mother is 

capable of making sure “the child eats properly, wears clothes and shoes that fit, 

or teach him things.” Appellee’s App. Vol. II, p. 25. “[Mother] doesn’t usually 

follow through with things.” Appellee’s App. Vol. II, p. 26. Another witness 

also voiced concerns that “[Mother] will not cooperate with [Father] to get the 

child the medical treatment that he needs.” Appellee’s App. Vol. II, p. 27. 

Based upon the witnesses’ comments and observations, the GAL concluded 

that Father is the most stable and reliable parent who will make sure all of 

D.M.’s needs are met. The trial court made its determination regarding custody 

after two evidentiary hearings and reading the GAL’s report. Based upon the 

extensive information reviewed by the court, sufficient findings were made to 
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support the trial court’s decision to award Father sole legal and physical 

custody of D.M., subject to Mother’s right to parenting time. 

III. Whether this Court has Jurisdiction to Address Child 

Support

[10] Mother argues that the trial court should have set two effective dates for the 

child support obligation. Father, however, argues that this court does not have 

jurisdiction to address this issue as there is not a final order nor is there an order 

that falls within the categories of valid interlocutory appeals. The trial court’s 

order appears to anticipate additional action by both Mother and Father prior 

to the trial court’s entering an order addressing child support and the effective 

dates for the child support. 

The Indiana Court of Appeals has jurisdiction in all appeals from 

final judgements. A final judgment is one which disposes of all 

claims as to all parties . . . . A final judgment disposes of all 

issues to all parties, thereby ending the particular case and 

leaving nothing for future determination. Whether an order is a 

final judgment governs our subject matter jurisdiction, and it can 

be raised at any time by any party or by the court itself. 

Bacon v. Bacon, 877 N.E.2d 801, 804 (Ind. Ct. App. 2007) (internal citations 

omitted). As stated above, the order at issue does not dispose of any claims 

regarding child support, therefore, we cannot address the issue regarding child 

support unless it is an appealable interlocutory order. 

An interlocutory order is one made before a final hearing on the 

merits and requires something to be done or observed but does 

not determine the entire controversy. The Indiana Court of 
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Appeals has jurisdiction over appeals of interlocutory orders 

under Rule 14. An interlocutory order may be appealed if the 

trial court certifies its order and the Court of Appeals accepts 

jurisdiction over the appeal.

 

Id. (internal citations and quotations omitted). No such certification and 

acceptance occurred in the present case. However, certain interlocutory orders 

may be appealed as a matter of right under Indiana Appellate Rule 14. 

“Appeals from interlocutory orders must be expressly authorized, and that 

authorization must be strictly construed.” Id. The order with respect to child 

support does not fall within any category of an interlocutory appeal as of right. 

Due to the fact that there is not a final order with respect to child support, 

Mother did not seek certification to file a discretionary interlocutory appeal, nor 

does the order with respect to child support qualify for an interlocutory appeal 

as of right, we do not have jurisdiction to rule on any issue regarding child 

support. 

IV. Whether Father Should Be Awarded His Appellate 

Attorney’s Fees

[11] Father argues that the case should be remanded to the trial court for 

consideration of an award of appellate attorney’s fees. “The Court may assess 

damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the 

Court’s discretion and may include attorneys’ fees.” Ind. Appellate Rule 66(E). 

However, our discretion is limited to “instances when an appeal is permeated 

with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of 

delay.” Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001) 
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(internal citation and quotations omitted). “In general, we are cautious to 

award attorney fees because of the potentially chilling effect the award may 

have upon the exercise of the right to appeal.” Holland v. Steele, 961 N.E.2d 

516, 528 (Ind. Ct. App. 2012). Although we have not ruled in favor of Mother, 

we decline to remand the case back to the trial court for purposes of considering 

an award of appellate attorneys’ fees because there is no evidence of frivolity, 

bad faith, or any other instance that would give rise to such an award. 

[12] We affirm the trial court’s order regarding the custody modification and decline 

to remand the case for a determination regarding Father’s appellate attorney’s

fees. 

Vaidik, C.J., concurs.

Brown, J., concurs in result with opinon.
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I N T H E

COURT OF APPEALS OF INDIANA

Lisa Bauschke,

Appellant-Respondent,

v.

Eric Miller,

Appellee-Petitioner.

Court of Appeals Case No.

20A04-1606-JP-1225

Brown, Judge, concurring in the result.

[13] I concur with the majority’s conclusion to affirm the trial court’s order 

regarding custody modification and to decline to remand the case for a 

determination regarding Father’s appellate attorney fees. I write separately 

regarding the majority’s conclusion that we do not have jurisdiction to rule on 

the child support issue raised by Mother. Slip op. at 11. In its order, the trial 

court ordered the parties to exchange information necessary to recalculate child 

support, submit a child support obligation worksheet to the court within fifteen 
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days if possible, and it set the date “that the modification of child support 

[would] take effect” as May 20, 2016. Appellee’s Appendix Vol. II at 21. On 

appeal, Mother argues that she “filed a motion for modification of child support 

on January 21, 2015 and the court never issued an even temporary order as the 

parties attempted to work through the issues” and that the “court should have 

set two effective dates for child support to be calculated, January 21, 2015 thru 

May 20, 2016 and May 20, 2016 going forward.” Appellee’s Brief at 27.

[14] The Indiana Supreme Court recently explained in In re Matter of D.J. v. Dep’t of 

Child Servs., No. 02S03-1610-JC-548 (Ind. Feb. 7, 2016), that even where a 

court’s order does not amount to a final judgment or qualify as an interlocutory 

order under Ind. Appellate Rule 14, “timeliness is not a prerequisite to invoking 

appellate jurisdiction.” Slip. op. at 5. The Court restated the observation as 

follows: “the reviewing court is not deprived of jurisdiction if the notice is 

untimely—meaning belated or premature. The only two prerequisites under 

our appellate rules are (i) the trial court must have entered an appealable order, 

and (ii) the trial clerk must have entered the notice of completion of clerk’s 

record on the CCS.” Id. at 5-6. In this case, the court stated in its order that 

modification would take effect as of May 20, 2016. The parties do not dispute 

that the trial clerk entered the notice of completion of clerk’s record on the 

CCS. Under these circumstances, I do not believe that a jurisdictional issue 

exists. 

[15] Generally, “[a] trial court has discretion to make a modification of child 

support relate back to the date the petition to modify is filed, or any date 
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thereafter.” Becker v. Becker, 902 N.E.2d 818, 820 (Ind. 2009). Mother 

challenges the court’s decision to set the modification’s effective date for May 

20, 2016 rather than January 21, 2015, the date she filed her Verified Petition

for Custody, Child Support Modification and to Establish Parenting Time. A 

court’s ruling regarding modification of child support is reviewable for an abuse 

of discretion. In re Guardianship of R.M.M., 901 N.E.2d 586, 588 (Ind. Ct. App. 

2009). However, Mother fails to cite to the record or develop a cogent 

argument regarding this issue. The portion of her argument discussing this 

issue consists of three sentences, none of which are supported by citations to the 

record or authority, and she has not included her verified petition among the 

filed documents for review. Mother has thus waived her argument. See Loomis 

v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument 

waived for failure to cite authority or provide cogent argument), reh’g denied, 

trans. denied.