Donald Searing v. Karen Vivas Searing (mem. dec.)
84A05-1609-DR-2144
| Ind. Ct. App. | Apr 27, 2017Background
- Parents married in the Philippines; son C.S. born in 2010 and holds U.S. and Philippine citizenship. Parties separated in 2014 after Mother traveled to the Philippines with C.S. and did not timely return.
- Father filed for dissolution in July 2014; initial trial court awarded parenting time to Father but later granted primary physical custody to Mother after a May 2015 hearing.
- On appeal the Indiana Court of Appeals (March 8, 2016) reversed, finding the record supported awarding primary physical custody to Father based on Mother’s yearlong alienation, instability, and inadequate medical care for C.S.; remanded for child-support recalculation.
- Mother filed a petition to modify custody while appellate proceedings were pending; after issuance of the appellate opinion and changes in both households, a different trial judge held a new hearing in July 2016.
- The trial court (Sept. 2, 2016) found substantial changes since the prior custody order (Mother: stable housing, steady income, remarriage, school enrollment and medical care for C.S.; Father: new job, larger household) and awarded primary physical custody to Mother, with parenting time and Skype provisions for Father.
- Father appealed the modification, arguing there was no substantial, admissible change in circumstances during his brief custody period and that the trial court ignored ongoing concerns about Mother highlighted in the prior appeal.
Issues
| Issue | Plaintiff's Argument (Searing) | Defendant's Argument (Vivas) | Held |
|---|---|---|---|
| Whether trial court abused discretion in modifying custody to Mother | Trial court relied on changes that occurred while Father had only a short custody period; changes in Mother’s household alone shouldn’t justify modification; court overlooked Mother’s continuing problematic conduct | Mother argued trial court properly considered post-2015 developments showing stability (housing, job, marriage), C.S.’s school and medical care, and strong ties to California community | Court affirmed: trial court did not abuse discretion — it could consider events since the May 2015 order and reasonably found a substantial change and best-interest basis for modification |
| Whether the court improperly considered pre-appeal events | Father: evidence before appellate decision shouldn’t be admitted unless tied to §31-17-2-8 factors | Mother: trial court permissibly considered relevant changes affecting child’s best interests | Court allowed consideration of events since the last custody proceeding to the extent they related to statutory best-interest factors |
| Standard of review applied by trial court | Father: court applied initial-custody standard rather than modification standard requiring substantial change | Mother: trial court applied modification framework and weighed statutory factors | Court: appellate deference applies; findings under T.R. 52(A) supported trial court’s exercise of discretion in modification context |
| Whether Mother’s remarriage alone justified change | Father: remarriage insufficient; prior instability and misconduct remain relevant | Mother: remarriage plus stable housing, income, involvement of stepfather, schooling and medical care constitute substantial change | Court: remarriage combined with multiple favorable changes can support modification; here cumulative factors sufficed |
Key Cases Cited
- Kirk v. Kirk, 770 N.E.2d 304 (Ind. 2002) (standard of review and deference to trial court in custody matters)
- Steele-Giri v. Steele, 51 N.E.3d 119 (Ind. 2016) (appellate review limits and requirement that evidence must positively require reversal)
- Dunson v. Dunson, 769 N.E.2d 1120 (Ind. 2002) (applicability of Trial Rule 52(A) findings in review)
- Yanoff v. Muncy, 688 N.E.2d 1259 (Ind. 1997) (review of findings and whether they support judgment)
- Walker v. Nelson, 911 N.E.2d 124 (Ind. Ct. App. 2009) (multiple factors together may justify custody modification)
- Barnett v. Barnett, 447 N.E.2d 1172 (Ind. Ct. App. 1983) (relative parental stability as a basis for modification)
- Brickley v. Brickley, 210 N.E.2d 850 (Ind. 1965) (trial judge’s advantage in observing witnesses and demeanor)