IN RE THE MARRIAGE OF AMY STEELE-GIRI, Appellant (Respondent below),
BRIAN K. STEELE, Appellee (Petitioner below)
from the Lake Superior Court, No. 45D03-0606-DR-00617. The
Honorable Elizabeth F. Tavitas, Judge. The Honorable Nanette
K. Raduenz, Magistrate. On Petition to Transfer from the
Indiana Court of Appeals, No. 45A04-1412-DR-00600.
FOR APPELLANT: Jill S. Swope, Sterba & Swope, LLP,
Schererville, Indiana; Julia Blackwell Gelinas, Abigail T.
Rom, Margaret Lee Smith, Frost Brown Todd, LLC, Indianapolis,
FOR APPELLEE: Debra Lynch Dubovich, Levy & Dubovich,
Merrillville, Indiana; John M. Rhame, III, Rhame & Elwood,
Justice. Rush, C.J., Dickson, Rucker and Massa, J. J.,
and Procedural History
Steele (" Father" ) and Amy Steele-Giri ("
Mother" ) divorced in 2007. They have one minor child,
J.S., who was two (2) years old at the time of the divorce.
Initially, the parties had joint legal and physical custody
of J.S. Thereafter, Mother planned to move to California to
be with her now-husband, Dr. Giri. At that time, Father had
been cohabiting with his girlfriend, Brenda Guth, for the
previous two (2) years. By agreement of the parties and based
on the appointed guardian ad litem's (GAL) report, the
trial court granted an agreed order giving primary physical
custody to Father. In the GAL's report, she stated that
Father had a flexible work schedule and that Ms. Guth was a
stay-at-home mother. Mother was granted liberal parenting
time including visits every four (4) to six (6) weeks, as
well as visits during spring break, summer, and anytime she
was in Indiana upon giving Father 48 hours' notice. The
parties continued to share joint legal custody.
the initial custody modification, several changes have
occurred in both households. Mother and her new husband, Dr.
Giri, had a son, a half-brother to J.S. Additionally, Dr.
Giri took a ten (10) year contract position in Oregon. Mother
and her family moved to Oregon, and Mother became a
stay-at-home mom. Father changed jobs from one that had
flexible hours to a new job where he had to work 12 hours
shifts. Around the same time, Father's girlfriend, Ms.
Guth, started full-time work at a local school and thus, was
no longer a stay-at-home mom. Because of these schedule
changes, J.S. was enrolled in both before and after school
care. Father did not initially tell Mother about these
changes. Childcare records reflect that J.S. was dropped off
at before school care in the morning between 7:10 and 7:30
a.m. and then after school, she was transported by bus to
after school care at the Boys & Girls Club, where she
remained until she was picked up in the evenings. The pick-up
times varied. There were several occasions where J.S.
remained in after school care until approximately 8:00 p.m or
later. Father testified that J.S. enjoys her time at the Boys
& Girls Club, she has friends there and she engages in
activities such as soccer, crafts and dances there. On
occasion, J.S. has requested to stay there later.
beginning elementary school, J.S. has experienced some
academic difficulties. Her school sent home letters
indicating that she was either recommended to or required to
attend summer school after both 1st and 2nd grades. Father
did not advise Mother of the summer school recommendation and
requirement, nor did he enroll J.S. in summer school. Mother
was further removed from decision-making regarding J.S.'s
education because her contact information was not initially
included in J.S.'s school registration form. Also, while
J.S. has passed the ISTEP test, she has struggled and needed
extra help. However, despite J.S.'s initial struggles in
school, her third grade teacher reported to the GAL that she
is pleased with J.S.'s academic progress and that J.S.
works very hard. J.S.'s academic performance has improved
Guth has two children from a prior relationship that live in
the home with her and Father. While with Father, J.S. shares
a room with Ms. Guth's daughter, M.G., who is
approximately 4 years older than J.S. J.S. has struggled to
get along with M.G. Mother reported to the GAL that M.G.
fights with and shoves J.S. However, Father has characterized
the relationship between the girls as a sibling rivalry and
indicated that their arguments were " normal kids'
stuff." (App. at 63.) The GAL also put in her report and
testified that there had been some improvement in the
girls' relationship. Also, Father has remodeled the
girls' room so that each of them could have some privacy.
on the changed circumstances of both parents, Mother filed a
verified petition for modification of custody and a verified
motion for rule to show cause why Father should not be held
in contempt for not complying with the Court's legal
custody order. The GAL interviewed all the parties and filed
a report wherein she stated that she felt like there were no
objective witnesses she could rely upon and that she believed
that both parents had attempted to influence J.S.'s
reports and comments to her. She therefore declined to make a
formal recommendation regarding which parent should be
granted physical custody. She did, however, note concerns
about the amount of time J.S. spent in the care of someone
other than her Father, as well as concerns that J.S. was
having to share a room with M.G., with whom she has "
not been able to happily coincide, for all these years."
(App. at 79.) The GAL stated that the opportunity for J.S. to
live with Mother was " appealing" and that she
believes it would be nice if J.S. could have an opportunity
to live with Mother in Oregon to see if J.S. "
flourished in that setting." (App. at 80-81.) She also
stated that Father is a wonderful dad and that J.S. enjoys a
close relationship with her paternal grandparents. She stated
that J.S is " blessed to have two (2) parents who love
and adore her" and that J.S. could not choose between
them. (App. at 81.)
trial court entered findings of fact and conclusions of law
sua sponte and denied both Mother's request for
modification of custody and motion for rule to show cause
(contempt). Mother appealed. The Court of Appeals majority
reversed the trial court on both issues. Steele-Giri v.
Steele, 40 N.E.3d 513 (Ind.Ct.App. 2015). As for the
custody issue, the Court of Appeals majority determined that
some of the trial court findings were erroneous.
Specifically, the Court of Appeals found that the trial
court's finding characterizing J.S.'s relationship
with M.G. as merely a sibling rivalry and the finding that
J.S. was well-adjusted to school were erroneous. Id.
at 522-523. The Court of Appeals also concluded that the
trial court generally applied an erroneous standard in that
it focused solely on Father's situation in making its
determination, instead of looking at the changes to both
households and the impact on the child. Id. at 524.
It also found that Father was in contempt for making
unilateral decisions about J.S.'s education and by not
sharing information with Mother. Id. 527-528. Judge
Barnes dissented, concluding that while the evidence could
have supported a custody modification, it did not compel that
result. Id. at 529 (Barnes, J., dissenting).
filed a motion for immediate compliance with the Court of
Appeals opinion, and the Court of Appeals issued an order
transferring physical custody of J.S. to Mother in Oregon.
J.S. has been living with Mother in Oregon since that time.
Father sought transfer, which we granted after hearing oral
argument. Steele-Giri v. Steele, 41 N.E.3d 690 (Ind.
2015) (Table). We vacated the Court of Appeals' opinion
and the order transferring custody to Mother. Indiana
Appellate Rule 58(A); (Order Granting Transfer, December 14,
2015). We further ordered Mother to transfer physical custody
back to Father during J.S.'s winter break from school.
(Order Granting Transfer, December 14, 2015.)
that the trial court did not err in denying Mother's
motions for custody modification and for contempt. In light
of the highly deferential standard of review afforded to
trial courts in family law matters and in contempt matters,
the Court of Appeals should have affirmed the trial court.
Accordingly, we affirm the trial court's denial of
Mother's motions for custody modification and for
trial court entered findings of fact and conclusion of law in
its order denying modification of custody. Pursuant to
Indiana Trial Rule 52(A), the reviewing court will " 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."
D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind. 2012)
(internal quotation and citations omitted). Where a trial
court enters findings sua sponte, the appellate
court reviews issues covered by the findings with a
two-tiered standard of review that asks whether the evidence
supports the findings, and whether the findings support the
judgment. In re S.D., 2 N.E.3d 1283, 1287 (Ind.
2014) (citation omitted). Any issue not covered by the
findings is reviewed under the general judgment standard,
meaning a reviewing court should affirm based on any legal
theory supported by the evidence. Id.
there is a well-established preference in Indiana " for
granting latitude and deference to our trial judges in family
law matters." In re Marriage of Richardson, 622
N.E.2d 178 (Ind. 1993). Appellate courts " are in a poor
position to look at a cold transcript of the record, and
conclude that the trial judge, who saw the witnesses,
observed their demeanor, and scrutinized their testimony as
it came from the witness stand, did not properly understand
the significance of the evidence." Kirk v.
Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting
Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d
850, 852, 211 N.E.2d 183 (1965)). " On appeal it is not
enough that the evidence might support some other conclusion,
but it must positively require the conclusion contended for
by appellant before there is a basis for reversal."
Id. " Appellate judges are not to reweigh the
evidence nor reassess witness credibility, and the evidence
should be viewed most favorably to the judgment."
Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)
party seeking to modify custody bears the burden of
demonstrating the existing custody should be altered.
Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)
(citation omitted). Indeed, this " more stringent
standard" is required to support a change in custody, as
opposed to an initial custody determinations where there is
no presumption for either parent because " permanence
and stability are considered best for the welfare and
happiness of the child." Id. (citation
Rule to Show Cause (Indirect Contempt)
It is soundly within the discretion of the trial court to
determine whether a party is in contempt, and we review the
judgment under an abuse of discretion standard."
Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202
(Ind. 2012) (citation omitted). " We will reverse a
trial court's finding of contempt only if there is no
evidence or inference therefrom to support the finding."
Id. The trial court has the inherent power to "
maintain[ ] its dignity, secur[e] obedience to its process
and rules, rebuk[e] interference with the conduct of
business, and punish[ ] unseemly behavior." Id.
Indiana Code § 31-17-2-21 provides that a trial court
" may not modify a child custody order unless: (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 [Ind. Code §
31-17-2-8]. . ." Ind. Code § ...