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In re Paternity of C.B.

Court of Appeals of Indiana

October 19, 2018

In re the Paternity of C.B. and S.B.
v.
Kara Davis, Appellee-Respondent Gregory W. Brown, Appellant-Petitioner,

          Appeal from the Lake Superior Court The Honorable John M. Sedia, Special Judge Trial Court Cause Nos. 45D06-1504-JP-402, -403

          Attorney for Appellant R. Brian Woodward Woodward Law Offices, LLP Merrillville, Indiana

          Attorney for Appellee Tula Kavadias Kavadias & Associates, PC Crown Point, Indiana

          CRONE, JUDGE.

         Case Summary

         [¶1] Gregory W. Brown ("Father") filed petitions to establish paternity to C.B. and S.B. ("the Children"), whose mother is Kara Davis ("Mother"). The parties stipulated to paternity. After a hearing, the trial court issued an order awarding Mother sole legal and physical custody of the Children, granting Father parenting time, and directing Father to pay child support. Mother filed a motion to correct error. The trial court issued an order granting the motion in part and denying it in part. Father filed a notice of appeal from the original order, and Mother cross-appealed. Father challenges the trial court's custody, parenting time, and child support rulings. Mother also challenges the child support ruling and argues that Father forfeited his right to appeal by failing to comply with the appellate rules. We conclude that Father did not forfeit his right to appeal, and we affirm the custody and parenting time rulings, but we reverse the child support ruling and remand for reconsideration consistent with this decision.

         Facts and Procedural History [1]

         [¶2] Mother and Father started living together in 2006. C.B. was born in 2007, and S.B. was born in 2011. In 2015, Mother obtained a protective order against Father. Father filed petitions to establish paternity to each child, and those actions were consolidated. The parties stipulated to paternity, entered into an agreed provisional order to share custody of the children, and then filed several dueling contempt petitions. The trial court patiently endured seven days of extremely contentious hearings on the paternity and contempt petitions from February through October 2017. On October 30, 2017, the trial court issued an order awarding Mother sole legal and physical custody of the Children, granting Father parenting time, directing Father to pay child support, and denying the parties' contempt petitions.

         [¶3] On November 13, 2017, Mother filed a motion to correct error as to child support. On November 16, the trial court issued an order granting the motion in part as to paragraphs 6 and 7 of the October 30 order, which it revised accordingly, and denying it in all other respects. On November 30, Father filed a notice of appeal from the October 30 order that does not mention or include a copy of the November 16 order. Father raises several issues in his appellant's/cross-appellee's brief, and Mother raises several issues in her appellee's/cross-appellant's brief. Additional facts will be provided below.

         Section 1 - Father did not forfeit his right to appeal.

         [¶4] We first address Mother's contention that Father forfeited his right to appeal by allegedly failing to comply with Indiana Appellate Rule 9. Appellate Rule 9(F)(3)(b) provides that an appellant's notice of appeal must include "[t]he date on which any Motion to Correct Error was denied or deemed denied, if applicable[.]" Mother complains that Father's notice of appeal does not include the date of the November 16 order, but she ignores the fact that her motion to correct error was granted in part. Appellate Rule 9(F)(8)(b) provides that "[a] copy of the order denying the Motion to Correct Error, or, if deemed denied, a copy of the Motion to Correct Error, if applicable[, ]" must be attached to the notice of appeal. Mother complains that Father did not attach a copy of the November 16 order to his notice of appeal, but again she ignores the fact that her motion to correct error was granted in part. It is true, as Mother observes, that the November 16 order addresses child support, which Father raises in his brief, but it is also true, as Father points out, that he disagrees with both orders on this issue. Even if the spirit of the rule would require (and the better practice might have been for) Father to mention both orders in his notice of appeal and attach a copy of both orders, Mother cites no persuasive authority for the proposition that Father forfeited his right to appeal any or all of the issues raised in his brief by failing to do so.

         Section 2 - The trial court's custody ruling is not clearly erroneous.

         [¶5] Next, we address Father's contention that the trial court erred in awarding Mother sole legal and physical custody of the Children. The trial court made findings of fact and conclusions thereon at the parties' request pursuant to Indiana Trial Rule 52(A). In reviewing such findings, we first determine whether the evidence supports the findings and then determine whether the findings support the judgment. In re Paternity of M.R.A., 41 N.E.3d 287, 292-93 (Ind.Ct.App. 2015). We "shall not set aside the findings or judgment unless clearly erroneous …." Id. at 293 (quoting Ind. Trial Rule 52(A)). "A judgment is clearly erroneous when there is no evidence supporting the findings, when the findings fail to support the judgment, or when the trial court 'applies the wrong legal standard to properly found facts.'" Id. (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009)). "In reviewing the trial court's entry of special findings, we neither reweigh the evidence nor reassess the credibility of the witnesses. Rather we must accept the ultimate facts as stated by the trial court if there is evidence to sustain them." In re Paternity of B.M., 93 N.E.3d 1132, 1135 (Ind.Ct.App. 2018) (citation omitted). "Although we give considerable deference to trial courts in family law matters, 'to the extent a ruling is based on an error of law or is not supported by the evidence, it is reversible, and the trial court has no discretion to reach the wrong result.'" M.R.A., 41 N.E.3d at 293 (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938, 941 (Ind. 2005)).

         [¶6] Initial custody determinations in paternity actions are governed by Indiana Code Section 31-14-13-2, which reads in relevant part as follows:

The court shall determine custody in accordance with the best interests of the child. In determining the child's best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parents;
(B) the child's siblings; and
(C) any other person who may significantly affect the child's best interest.
(5) The child's adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.

(Emphasis added.)

         [¶7] Indiana Code Section 31-14-13-2.3(a) allows the court to award the parties joint legal custody "if the court finds that an award of joint legal custody would be in the best interest of the child." The statute further provides,

(b) An award of joint legal custody under this section does not require an equal division of physical custody of the child.
(c) In determining whether an award of joint legal custody under this section would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint legal custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint legal custody;
(2) whether the persons awarded joint legal custody are willing and able to communicate and cooperate in advancing the child's welfare;
(3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody;
(5) whether the persons awarded joint legal custody:
(A) live in close proximity to each other; and
(B)plan to continue to do so;
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint legal custody; and
(7) whether there is a pattern of domestic or family violence.

(Emphasis added.)

         [¶8] In its October 30 order, the trial court made the following ...


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