Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 1 of 13

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

Nicholas F. Wallace

Leonard, Hammond, Thoma & Terrill

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Patricia L. Martin

Martin Law Offices, PC

Angola, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Marriage of Albertson:

Amanda Albertson,

Appellant-Petitioner,

v.

William Albertson,

Appellee-Respondent.

September 28, 2018

Court of Appeals Case No.

18A-DR-441

Appeal from the Dekalb Circuit

Court

The Honorable Kurt Bentley 

Grimm, Judge

Trial Court Cause No.

17C01-0903-DR-65

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 2 of 13

Case Summary

[1] Amanda Albertson (“Mother”) and William Albertson (“Father”) are the 

parents of J.A. and L.A. (collectively, the “Children”). Mother was initially 

awarded custody of the Children. However, after Mother made a series of 

unsubstantiated allegations of physical and sexual abuse against Father, Father 

petitioned for and was granted custody of the Children. Mother was also 

ordered to pay $13,125.00 of Father’s attorney’s fees. On appeal, Mother 

contends that the trial court abused its discretion in modifying the prior custody 

order, violated her procedural due process rights by considering certain 

evidence, and abused its discretion by ordering her to pay a portion of Father’s 

attorney’s fees. We affirm.

Facts and Procedural History

[2] Mother and Father were married and are the parents of the Children. Their 

divorce was finalized on February 18, 2011. Mother was granted custody of the 

Children on February 12, 2012. After receiving custody, Mother and the 

Children lived with her parents.

[3] On October 14, 2016, Father was granted expanded, unsupervised parenting 

time with the Children. Shortly after Father began exercising his unsupervised 

parenting time, Mother began making allegations of physical and sexual abuse 

of the Children by Father. All of the allegations were investigated and found to 

be unsubstantiated. 
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[4] In May of 2017, Mother and Father each filed petitions seeking to modify the 

existing custody and parenting time orders. The trial court conducted a twoday hearing on the parties’ petitions on December 14–15, 2017. At the time of 

the hearing, J.A. and L.A. were eight and six years old, respectively. 

[5] On February 14, 2018, the trial court issued an order modifying custody and 

awarding custody of the Children to Father. In its order, the trial court found 

that (1) Father “is a fit father”; (2) Mother “is currently an unfit mother and 

that she is consciously inflicting on her two boys what is in essence emotional 

abuse to suit her own goals and objectives”; (3) “modification of custody is in 

the best interests of [the Children] and ... that if such modification does not 

swiftly transpire irreparable damage will occur, if it has not already, to these 

two young boys”; and (4) “parenting time with [Mother], if not carefully 

supervised and controlled, would significantly impair the emotional 

development” of the Children. Appellant’s App. Vol. II, p. 33.

Discussion and Decision

[6] On appeal, Mother contends that the trial court abused its discretion in granting 

Father’s request for a modification of custody and in granting custody to 

Father. In making this contention, Mother argues that the evidence does not 

support the trial court’s determination that a change of custody was in the 

Children’s best interests. Mother also contends that the trial court violated her 

procedural due process rights by considering certain evidence. Lastly, Mother 
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contends that the trial court abused its discretion in ordering that she pay 

$13,125.00 of Father’s attorney’s fees. 

I. Modification Order

[7] “We review custody modifications for abuse of discretion with a preference for 

granting latitude and deference to our trial judges in family law matters.” Kirk 

v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (internal quotation omitted). Where, 

as here, a trial court has entered findings of fact and conclusions thereon,

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. Appellate judges are not to reweigh the evidence nor 

reassess witness credibility, and the evidence should be viewed 

most favorably to the judgment. Findings are clearly erroneous 

only when the record contains no facts to support them either 

directly or by inference. 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 face-to-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.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations and quotations omitted). 

“Therefore, on appeal it is not enough that the evidence might support some 

other conclusion, but it must positively require the conclusion contended for by 
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appellant before there is a basis for reversal.” Kirk, 770 N.E.2d at 307 (brackets 

and quotation omitted).

[8] Indiana Code section 31-17-2-21(a) provides that a trial court may modify a 

child custody order if “(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 ... of this chapter.” The factors listed in 

Indiana Code section 31-17-2-8 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;

(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.

(9) A designation in a power of attorney of:

(A) the child’s parent; or

(B) a person found to be a de facto custodian of the 

child.
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[9] The trial court found that the evidence presented “demonstrates numerous 

substantial changes in the factors identified in [Indiana Code section] 31-17-2-8 

as illustrated in the Court’s findings of fact and the evidence presented shows 

that a modification of custody in this case would be in the best interests of the 

children.” Appellant’s App. Vol. II, p. 36. While the trial court did not specify 

which factors had substantially changed, we have previously held it was not 

necessary for the trial court to do so. See Nienaber v. Marriage of Nienaber, 787 

N.E.2d 450, 456 (Ind. Ct. App. 2003) (noting that we had previously rejected 

the argument that the court must specifically identify which of the statutory

factors had substantially changed). As such, we will affirm the trial court’s 

order modifying custody so long as the evidence supports the trial court’s 

conclusion.

[10] The record reveals that Mother has engaged in a pattern of behavior seemingly 

aimed at controlling the proceedings in a manner intended to make any 

interaction between the Children and Father appear stressful and harmful to the 

Children. Court-Appointed Special Advocate (“CASA”) Lee Marki’s reports 

and testimony indicated that Mother would occasionally prod the Children to 

make statements about Father which appeared to be coached by Mother or 

maternal grandparents. Throughout CASA Marki’s participation in the case, 

Mother also displayed a reluctance to allow CASA Marki to speak to the 

Children without her present. In addition, the trial court found that Mother 

had “done little or nothing to assist” Father in rebuilding a relationship with the 

Children and had shown a knowing, willful, intentional, and contemptuous 
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disregard for court orders regarding parenting time. Appellee’s App. Vol. II, p. 

17.

[11] During the evidentiary hearing, the trial court heard significant testimony 

relating to Mother’s numerous allegations that Father had both physically and 

sexually abused the Children. Mother’s allegations were investigated by DCS 

“on several occasions and in all cases were deemed unsubstantiated.” 

Appellant’s App. Vol. II, p. 31. In addition, no action was taken after the 

allegations were investigated by the State Police and the Steuben County 

Sheriff’s Department. While one of Mother’s witnesses indicated that he 

believed the allegations simply because they were made, even this witness 

testified that he found no physical evidence of the claimed abuse. The trial 

court noted that CASA Marki was of the opinion “that the allegations of sexual 

abuse have been fabricated by [Mother] with the end goal of alienating Father 

from his boys and ultimately removing him altogether from his children’s lives” 

and “that Mother’s ongoing allegations of sexual abuse are having a damaging 

and traumatic effect upon the emotional development of the [Children.]” 

Appellant’s App. Vol. II, p. 31.

[12] The trial court also heard evidence that maternal grandmother, with whom 

Mother and the Children lived, made negative comments to the Children about 

Father prior to their visitation with Father. During one visit, J.A. told Father 

that maternal grandmother had told him “that if someone was being mean to 

him he was supposed to kick them in the nuts” and that Father “was being 

mean.” Father’s Ex. 7, p. 13. During another visit, L.A. indicated that he 
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wanted to go home and “didn’t want to see [his] dad anymore” before 

admitting that “that’s what my grandma told me to say.” Father’s Ex. 7, p. 16. 

During yet another visit, J.A. hit Father with a fist and stated that Father was 

being mean and maternal grandmother told him “that he should hit his dad 

because he was mean.” Father’s Ex. 7, p. 17. J.A. also said that he did not 

want to see Father and was going to run away from him “because Grandma 

said.” Father’s Ex. 7, p. 17. CASA Marki indicated that she believed “the 

negative and hurtful suggestions the [Children] state they have been given by 

[maternal] grandma ... have them, especially [J.A.], extremely confused.” 

Father’s Ex. 7, p. 31.

[13] The trial court further noted that CASA Marki recommended that “custody be 

transferred to [Father] to prevent further emotional damage to the children as 

well as their relationship with their Father.” Appellant’s App. Vol. II, p. 31. 

CASA Marki also recommended that the trial court consider a mental health 

evaluation for Mother. The trial court found CASA Marki’s opinions to be 

persuasive and correct when considered in light of the evidence coupled with 

“the Court’s own observations as to presentment and demeanor of the 

witnesses.” Appellant’s App. Vol. II, p. 32.

[14] Based on the above-discussed evidence, the trial court found that the allegations 

of sexual and physical abuse by Father were false and were the result of 

fabrication by Mother. The trial court further found that in fabricating 

allegations of sexual abuse of the Children by Father, Mother “has engaged in a 

consistent pattern of conduct designed to alienate [Father] from [the Children], 
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and the Court further finds that the conduct of [Mother] is currently 

significantly impairing the emotional development of [the Children] and will 

continue to do so if there is not intervention to accomplish cessation of the 

conduct.” Appellant’s App. Vol. II, p. 32. For these reasons, the trial court 

concluded that a change in custody was in the Children’s best interests. The 

trial court acknowledged that the change in custody would likely have a 

temporary negative affect on the Children in that they would have to change 

schools, but determined that the short-term negative impact was outweighed by 

the Children’s other interests.

[15] Upon review, we conclude that the trial court’s findings and conclusions are 

supported by the record. As such, the trial court did not abuse its discretion in 

granting Father’s request for a modification of custody or in awarding custody 

to Father.

II. Procedural Due Process

[16] Mother next contends that the trial court violated her procedural due process 

rights by considering reports filed by CASA Marki after the close of the 

evidence. Mother’s contention is perplexing because the trial court’s order 

explicitly stated that the trial court did not consider the reports in question in 

reaching its decision. Specifically, the trial court stated the following:

The Court would note that subsequent to the close of the 

evidence the Court received additional Department of Child 

Services reports filed by CASA volunteer Lee Marki. These 

reports relate to numerous additional claims of sexual abuse 
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being perpetrated by the father against his children. The reports 

indicate that all claims as they relate to the father were 

unsubstantiated and that the Department of Child Services did 

substantiate as against the mother Amanda Albertson for 

emotional abuse of her children. The reports indicate that the 

Department of Child Services has offered a plan of informal 

adjustment to the mother. These reports, while filed with the 

court, were not considered by the Court in reaching its decision 

as herein announced, and in fact this decision was already in 

rough draft form at the time the Court received these reports and 

the only impact upon this decision was the addition of this 

footnote and the dealing with the subsequent motions generated 

by this filing.

Appellant’s App. Vol. II, p. 31. Later in its order, the trial court again 

reiterated that it “did not consider the CASA filing in question in rendering this 

decision.” Appellant’s App. Vol. II, p. 39. Given that the trial court’s explicit 

statements that it did not consider the reports in question, we conclude that 

Mother’s claim is without merit.

III. Attorney’s Fees

[17] In reviewing a trial court’s award of attorney’s fees, we apply an 

abuse of discretion standard. A trial court has wide discretion in 

awarding attorney’s fees. We will reverse such an award only if 

the trial court’s award is clearly against the logic and effect of the 

facts and circumstances before the court. The trial court may 

look at the responsibility of the parties in incurring the attorney’s 

fees. Furthermore, the trial judge possesses personal expertise 

that he or she may use when determining reasonable attorney’s 

fees. 
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Mason v. Mason, 775 N.E.2d 706, 711 (Ind. Ct. App. 2002) (internal citations 

omitted).

[18] In awarding attorney’s fees, the trial court found as follows:

Because the Court has found that the issues presented arose due 

to the deliberate fabrication of false accusations against [Father] 

by [Mother], designed to thwart and prevent [Father]’s parenting 

time with his children, the Court finds that an award of 

attorney’s fees is appropriate in this case. [Mother] shall pay to 

[Father] the amount of $13,125.00 towards [Father]’s attorney’s 

fees in this matter. This attorney fee amount shall be a judgment 

as against [Mother] in favor of [Father].

Appellant’s App. Vol. II, p. 38.

[19] The parties filed competing requests for attorney’s fees. Father’s request 

indicated that he owed $17,259.88 in fees. Mother’s request indicated that she 

owed $39,549.60 in fees. Mother challenges the trial court’s award of attorney’s 

fees to Father, claiming that the trial court failed to hold a hearing on her ability 

to pay. 

[20] The Indiana Supreme Court has noted that in determining an award of 

attorney’s fees, the trial court shall consider the “resources of the parties, their 

respective economic circumstances, and their ability to engage in gainful 

employment and earn adequate income.” Masters v. Masters, 43 N.E.3d 570, 

576 n.8 (Ind. 2015). A trial court may also consider factors bearing on 

reasonableness including, for example, “which party initiated the action, 

whether fees and expenses were incurred due to a party’s misconduct, and the 
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ability of the party to pay.” Id. at n.8. Thus, contrary to Mother’s claim, the 

trial court could, but was not required to, consider her ability to pay when 

entering the award of attorney’s fees for Father. See id. at n.8 (providing that 

the trial court “may” consider the ability of a party to pay).

[21] The record reveals that the trial court considered the parties’ economic 

circumstances and employment potential. During the hearing, the parties 

presented evidence relating to their respective employment and income. The 

trial court also considered that most, if not all, of Father’s fees were incurred 

because of Mother’s behavior. Again, the trial court noted during the 

proceedings that Mother demonstrated a knowing, willful, intentional, and 

contemptuous disregard for court orders. The trial court also noted Mother’s 

decision to levy numerous false accusations of physical and sexual abuse 

against Father, all of which had to be investigated and defended by Father. 

Mother’s decision to make these repeated false accusations amounted to 

misconduct and necessitated further proceedings. As such, we cannot say that 

the trial court abused its discretion in ordering that Mother pay $13,125.00 of 

Father’s attorney’s fees.

Conclusion

[22] In sum, the trial court did not abuse its discretion in modifying the custody 

award to grant custody of the Children to Father or in ordering Mother to pay 

$13,125.00 of Father’s attorney’s fees. The trial court also did not violate 
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Mother’s procedural due process rights as it explicitly stated that it did not 

consider the challenged evidence.

[23] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.