Roxanne Wells v. Wayne Wells, III (mem. dec.)
17A03-1701-DR-172
| Ind. Ct. App. | Sep 25, 2017Background
- Parents divorced in 2006; 2012 mediated agreement created de facto joint physical custody with joint legal custody and specified medical/dental providers and parenting time.
- Father filed petitions in 2015 to modify custody and to show cause after disputes over medical providers, insurance, and parenting-time conflicts; Guardian ad litem (GAL) reports were prepared (one by GAL Taylor, later replaced by GAL Shoup).
- Proceedings included a contested pretrial motion to exclude GAL Taylor’s earlier report and deposition; Mother’s in limine motion was denied and she failed to renew the objection at trial.
- At the January 2017 hearing, evidence included parental testimony about disagreements over the child’s doctors, insurance (Mother briefly added the child to Medicaid), extracurricular sports scheduling, parenting-time communications, and two prior contempt findings against Mother for violating the mediated agreement.
- Trial court found none of the statutory Section 8 custody factors favored either parent but concluded a change to sole physical and legal custody for Father was in the child’s best interests; court also issued a Parallel Parenting Time order.
- Court of Appeals reversed: upheld admission of GAL Taylor’s report (Mother waived contemporaneous objection), but held the record did not show the substantial change required to modify physical custody and did not support converting joint legal custody to sole custody.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Admissibility of GAL Taylor’s report | Report and deposition were irrelevant after GAL Taylor was replaced; should have been excluded | Report was part of the file and admissible; Mother waived the objection by not renewing it at trial | Admission upheld: Mother waived contemporaneous objection to the report at trial; any error harmless/cumulative |
| Custody modification — physical and legal custody | No substantial change in circumstances to justify modifying physical custody; parents’ disagreements were not so fundamental as to make joint legal custody impracticable | Ongoing acrimony, recurring disputes over medical care, insurance, extracurriculars, and putting the child between parents made joint legal custody unworkable and supported awarding Father sole custody | Reversed: trial court abused discretion. No sufficient finding of a substantial change to justify modifying physical custody; record did not establish that joint legal custody was no longer viable under statutory factors |
Key Cases Cited
- In re A.J., 877 N.E.2d 805 (Ind. Ct. App.) (standard for admission of evidence / abuse of discretion)
- In re Paternity of H.R.M., 864 N.E.2d 442 (Ind. Ct. App.) (cumulative evidence and harmless error)
- Miller v. Carpenter, 965 N.E.2d 104 (Ind. Ct. App.) (deference to trial courts in custody matters)
- Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206 (Ind.) (standards for reviewing Trial Rule 52 findings)
- Quillen v. Quillen, 671 N.E.2d 98 (Ind.) (findings clearly erroneous standard)
- Yoon v. Yoon, 711 N.E.2d 1265 (Ind.) (appellate review limited to evidence favorable to judgment)
- C.B. v. B.W., 985 N.E.2d 340 (Ind. Ct. App.) (effect of sua sponte special findings)
- Sutton v. Sutton, 16 N.E.3d 485 (Ind. Ct. App.) (what makes a change in circumstances "substantial")
- Jarrell v. Jarrell, 5 N.E.3d 1186 (Ind. Ct. App.) (contextual approach to custody-modification changes)
- Cunningham v. Cunningham, 787 N.E.2d 930 (Ind. Ct. App.) (burden to show existing order is unreasonable)
- Julie C. v. Andrew C., 924 N.E.2d 1249 (Ind. Ct. App.) (requirements to modify joint legal custody)
- Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App.) (joint legal custody considerations)
- Periquet-Febres v. Febres, 659 N.E.2d 602 (Ind. Ct. App.) (when joint custody is inappropriate due to parental conflict)
- Lamb v. Wenning, 600 N.E.2d 96 (Ind.) (changed circumstances standard)
- Swadner v. Swadner, 897 N.E.2d 966 (Ind. Ct. App.) (joint custody untenable when parents cannot cooperate)
- Finnerty v. Clutter, 917 N.E.2d 154 (Ind. Ct. App.) (joint custody: shared authority over major decisions)
- Walker v. Walker, 539 N.E.2d 513 (Ind. Ct. App.) (joint custody appropriate absent fundamental differences)
- Hanson v. Spolnik, 685 N.E.2d 71 (Ind. Ct. App.) (isolated misconduct not normally a basis for custody modification)