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In re Marriage of Steele-Giri

Supreme Court of Indiana

March 15, 2016

IN RE THE MARRIAGE OF AMY STEELE-GIRI, Appellant (Respondent below),
BRIAN K. STEELE, Appellee (Petitioner below)

          Appeal 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.

         ATTORNEYS FOR APPELLANT: Jill S. Swope, Sterba & Swope, LLP, Schererville, Indiana; Julia Blackwell Gelinas, Abigail T. Rom, Margaret Lee Smith, Frost Brown Todd, LLC, Indianapolis, Indiana.

         ATTORNEYS FOR APPELLEE: Debra Lynch Dubovich, Levy & Dubovich, Merrillville, Indiana; John M. Rhame, III, Rhame & Elwood, Portage, Indiana.

         David, Justice. Rush, C.J., Dickson, Rucker and Massa, J. J., concur.


         David, Justice.

         Facts and Procedural History

         Brian 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.

         Since 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.

         Since 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 each year.

         Ms. 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.

         Based 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.)

         The 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).

         Mother 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.)

         We hold 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 contempt.

         Standard of Review

         I. Child Custody

         The 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.

         Additionally, 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) (citations omitted).

          The 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 omitted).

         II. 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.


         I. Child Custody

          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 § ...

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