Carl Wayne Montgomery v. Patricia Ann Montgomery
59 N.E.3d 343
| Ind. Ct. App. | 2016Background
- Parents divorced: Father (Carl) awarded sole legal and physical custody of daughter A.M. (born 2008) in 2012; Mother (Patricia) initially denied parenting time but later granted distance-based parenting time under the Parenting Time Guidelines.
- From 2013–2014 Father alleged Mother’s partner (Gary Best) assaulted A.M.; Father withheld some scheduled parenting time and sought to restrict Best; Child Protective Services found no basis to supervise, and a guardian ad litem (GAL) ultimately recommended continued parenting time for Mother but that Best not be present.
- Mother recorded a covert April 2014 video in her attorney’s office showing A.M. interacting comfortably with Best and calling him “dad”; GAL reviewed the video and expressed concerns about Mother presenting Best as a father figure but still recommended continued custody with Father while excluding Best from visits.
- Mother filed a petition to modify custody in May 2014; after hearings in 2015 the trial court found Father fabricated the assault allegation and concealed records, awarded Mother legal and physical custody, and ordered Father to pay $7,500 of Mother’s attorney fees.
- The Court of Appeals reversed: it held the modification lacked sufficient proof of a substantial change in circumstances and was not shown to be in the child’s best interests; it also found the attorney-fee award an abuse of discretion given the sparse evidence of parties’ economic circumstances and the fact Mother was not a prevailing party under the General Recovery Statute.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether trial court properly modified custody to Mother | Father interfered with Mother’s parenting time (denied ~5 of 15 weeks) and made fabricated assault allegations about Best—supporting change | Father argued interference was not continuing/substantial, A.M. well-cared-for in his custody, and no evidence Best harmed A.M. | Reversed: insufficient evidence of a substantial change under I.C. §31-17-2-8 and modification not shown to be in child’s best interests; custody returned to Father |
| Whether trial court properly ordered Father to pay $7,500 of Mother’s attorney fees | Fees were justified by Father’s misconduct and litigation conduct | Father argued lack of evidence about parties’ resources and that Mother was not prevailing party under the General Recovery Statute | Reversed: abuse of discretion—court failed to consider parties’ economic circumstances; Mother not a prevailing party under general-fee statute |
Key Cases Cited
- Steele-Giri v. Steele, 51 N.E.3d 119 (Ind. 2016) (appellate deference to trial court in family law; reversal requires evidence that positively demands appellant’s conclusion)
- Kirk v. Kirk, 770 N.E.2d 304 (Ind. 2002) (importance of stability in custody decisions; limits to appellate reversal despite transcript review)
- Lamb v. Wenning, 600 N.E.2d 96 (Ind. Ct. App. 1992) (burden on parent seeking custody modification and higher standard to change custody)
- In re Marriage of Sutton, 16 N.E.3d 481 (Ind. Ct. App. 2014) (standards for reviewing findings entered sua sponte and substantial-change analysis)
- Johnson v. Nation, 615 N.E.2d 141 (Ind. Ct. App. 1993) (interference with visitation can be relevant but not always sufficient to modify custody)
- Allen v. Proksch, 832 N.E.2d 1080 (Ind. Ct. App. 2005) (standards for awarding attorney fees under I.C. §31-17-7-1 and required consideration of parties’ resources)