Todd M. Pieszchala v. Jamie Pieszchala (mem. dec.)

T
      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                                  FILED
      regarded as precedent or cited before any                                          Nov 19 2020, 8:40 am
      court except for the purpose of establishing
                                                                                             CLERK
      the defense of res judicata, collateral                                            Indiana Supreme Court
                                                                                            Court of Appeals
      estoppel, or the law of the case.                                                       and Tax Court




      ATTORNEYS FOR APPELLANT
      Cory A. Shoffner
      Brody B. Shoffner
      Shoffner & Shoffner, LLP
      LaPorte, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Marriage of:                       November 19, 2020

      Todd M. Pieszchala,                                     Court of Appeals Case No.
                                                              20A-DR-969
      Appellant-Respondent,
                                                              Appeal from the
              v.                                              LaPorte Superior Court
                                                              The Honorable
      Jamie Pieszchala,                                       Richard R. Stalbrink, Jr., Judge
                                                              Trial Court Cause No.
      Appellee-Petitioner.
                                                              46D02-1305-DR-236



      Kirsch, Judge.


[1]   Todd M. Pieszchala (“Father”) appeals the trial court’s order denying his

      petition to modify child custody. He raises the following issue for our review:

      whether the trial court erred in finding that he did not meet his burden that a

      Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020             Page 1 of 12
      modification was in the best interests of the children and that there was a

      substantial change in circumstances.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Father and Mother are the parents of Ai.P., who was ten years old at the time

      of the order denying Father’s petition to modify custody, and Ad.P., who was

      nine years old (together, “the Children”). Tr. Vol. II at 27. The marriage

      between Father and Mother was dissolved in 2014, and a Stipulated

      Modification of Custody was entered on April 28, 2017. Appellant’s App. Vol. II

      at 11. At that time, both parties were granted joint physical custody of the

      children, with Father exercising parenting time “every Wednesday after school

      to Friday morning and alternating weekends commencing Friday after school

      until Sunday at 4:30 p.m.”

Id. On June 24,

2019, Father filed a motion to

      modify custody.

Id. at 7.

A bifurcated hearing was held on the petition on

      December 18, 2019 and on March 2, 2020.

Id. at 9;

Tr. Vol. II at 8, 126.


[4]   At the hearing, Mother testified that, since the dissolution, she had four

      different places of employment in the last five years, and she has lived at five

      different locations with the Children.

Id. at 23-24, 37.

In February 2018,

      Mother had been asked to leave the home she was renting or be evicted due to

      failure to pay rent consistently.

Id. at 23-24, 99.

Mother also testified that there

      was an order to vacate filed for the home she was renting at the time of the



      Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020   Page 2 of 12
      hearing, but that she had paid her rent, and the landlord allowed her to remain

      in the home.

Id. at 15-16, 142. [5]

  Evidence was presented that Mother had received several disconnect notices for

      her water dated May 22, 2019, August 22, 2019, and September 19, 2019.

Id. at 17;

Appellant’s App. Vol II at 19-30. Mother testified that her water had been

      shut off “once” and was “paid and restored on the same day.” Tr. Vol. II at 18-

      19. Mother disputed the records from the water company indicating that her

      water was shut off on July 2, 2019 through July 8, 2019, on September 4, 2019

      through September 10, 2019, and on December 2, 2019 through December 4,

      2019, stating that “we can’t go six days without water at our house.”

Id. at 20;

      Appellant’s App. Vol II at 31-50. Mother was later asked “your water hasn’t been

      shut off three times,” to which she responded, “I’m not saying it hasn’t been

      turned off three times. I’m saying I haven’t gone without water on a numerous

      daily basis.”

Id. at 21.

The custodian of records for the Westville Water

      Department testified that the water was shut off for the time periods mentioned

      above.

Id. at 133.

Evidence was also presented of gas and electric disconnect

      notices for Mother’s prior address, indicating a shut off from July 23, 2018 to

      July 25, 2018.1

Id. at 22;

Appellant’s App. Vol II at 51-130.




      1
        We note there is a discrepancy in the dates that Mother lived at this prior address, as she testified that she
      was asked to move out of the address in February 2018, but evidence was also presented that her gas and
      electric had been shut off at that address from July 23, 2018 to July 25, 2018. Tr. Vol. II at 23-24,

      Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020                      Page 3 of 12
[6]   Mother testified that during spring break in 2019 and the summer of 2019, she

      allowed the Children, who were ten years old and almost nine years old at the

      time, to stay home alone for periods of time while she worked. Tr. Vol. II at 28.

      She testified that her employer was flexible and allowed her to come and go as

      she needed to check on the Children and that she had lunch with them every

      day.

Id. Mother testified that

she allowed the Children to take baths while she

      was not home and stated that she believed that they were responsible enough to

      do so.

Id. at 35.

Mother stated that she believed that the Children were mature

      enough and old enough to be left alone for certain periods of time.

Id. at 60. [7]

  Evidence was presented that Ai.P. was diagnosed with ADHD and takes

      medication.

Id. at 28.

Mother stated that in the prior year there were two or

      three times that Ai.P. had not taken his medication while in her care.

Id. at 45.

      Ai.P.’s teacher testified that there were at least two occasions that she suspected

      Ai.P. had not taken his medication.

Id. at 79.

Testimony was also presented

      that Ad.P. wears glasses and that there were multiple times where Ad.P. would

      forget to wear her glasses to school and Mother would need to bring them to

      school.

Id. at 31, 92.

There was testimony presented that Ai.P. was browsing

      inappropriate websites on his cell phone on more than one occasion and was

      caught by Father, who made Mother aware of it.

Id. at 35.

Mother stated that,

      after discovering this, she installed an app on the cell phone to allow her to

      monitor Ai.P.’s phone.

Id. Mother admitted that

there had been issues where

      Ai.P. was not turning in his homework and was suspended from playing




      Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020   Page 4 of 12
      basketball for a week.

Id. at 33.

She testified that this prompted her to

      physically check his homework every night.

Id. at 32-33. [8]

  Father testified that he suspected on three different days after the children were

      in Mother’s care that the children had not brushed their teeth.

Id. at 10.

When

      Mother was asked if she made sure that the Children brushed their teeth before

      they went to school, she responded that she always instructed them to, but that

      she did not “stand over their shoulder every morning.”

Id. at 46. [9]

  At the first hearing date, Mother testified that the children “have emotional

      damage” and are “in therapy right now on my days.”

Id. at 65-66.

At the

      second hearing, Mother then acknowledged that “[the children] hadn’t started

      therapy” despite her previous testimony and stated it was because Father would

      not agree to anything.

Id. at 141, 148.

Testimony was presented that Ad.P. had

      been given a special needs diagnosis and “both [Father] and [Mother] have kept

      up in communication with her teachers and the schools to help develop a plan

      to get her to where she needs to be.”

Id. at 68, 69.

Ad.P.’s second grade

      teacher testified that several meetings were scheduled and that Mother did not

      come to one, was late to another, and canceled another meeting.

Id. at 87.

The

      teacher further testified that she and Father had communicated during the

      spring of 2019 regarding learning disability testing meetings, but Father could

      not make the decision because of his lack of educational custody.

Id. at 88.

      When asked if it was fair to say that Mother’s cancellation delayed the testing,

      the teacher responded, “Sure.”

Id. at 89.


      Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020   Page 5 of 12
[10]   Mother and Father testified that the communication between the parties was

       extremely poor.

Id. at 62, 63, 113.

Mother acknowledged that she struggled

       financially and had “come up against a brick wall a few times over the last

       couple years,” but managed to make it work.

Id. at 61.

She testified that she

       worked hard to provide for the Children and that “[t]hey are loved. They are

       healthy. They are cared for.”

Id. Father testified that

he was gainfully

       employed, was remarried, and that he could provide the stable environment

       that the children need, including supervising their homework and ensuring

       Ad.P. goes to school with her glasses every day.

Id. at 103, 107-08.

Father also

       stated that he would check in with Ai.P. on Mother’s days to ensure his

       homework was being completed.

Id. at 107-08. [11]

  At the conclusion of the hearing, the trial court issued an order denying

       Father’s petition to modify custody. Appellant’s App. Vol. II at 11-18. The trial

       court concluded that:


               Mother is not financially well off. She struggles in comparison to
               Father’s financial resources, but that does not make her a poor
               mother. Mother has made some mistakes and has openly
               admitted to the mistakes in court; however, based on a review of
               the evidence presented and considered by the court in its entirety,
               the court finds that Father has not met his burden and Father’s
               "Motion for Modification of Custody" is hereby denied.

Id. at 18.

Father now appeals.




       Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020   Page 6 of 12
                                         Discussion and Decision
[12]   We begin by noting that Mother has not filed an appellee’s brief. 2 When an

       appellee fails to file a brief, we need not undertake the burden of developing an

       argument on appellee’s behalf. C.V. v. C.R., 

64 N.E.3d 850

, 852 (Ind. Ct. App.

       2016). Instead, applying a less stringent standard of review, we may reverse the

       trial court’s judgment if the appellant can prove a case of prima facie error.

Id. “Prima facie error

in this context is defined as, ‘at first sight, on first appearance,

       or on the face of it.’” Trinity Homes, LLC v. Fang, 

848 N.E.2d 1065

, 1068 (Ind.

       2006) (quoting Santana v. Santana, 

708 N.E.2d 886

, 887 (Ind. Ct. App. 1999)).


[13]   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.’” Steele-Giri v. Steele, 

51 N.E.3d 119

, 123

       (Ind. 2016) (quoting D.C. v. J.A.C., 

977 N.E.2d 951

, 953 (Ind. 2012)). 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




       2
         Mother did not file an appearance and did not file a brief in this case. She did make a filing with this court
       that is styled as a letter and contends that the trial court’s order should be affirmed. However, this filing does
       not follow the Indiana Rule of Appellate Procedure and does not contain any citation to the record or legal
       authority. It is well settled that pro se litigants are held to the same legal standards as licensed attorneys.
       Lowrance v. State, 

64 N.E.3d 935

, 938 (Ind. Ct. App. 2016). This means that pro se litigants are bound to
       follow the established rules of procedure and must be prepared to accept the consequences of their failure to
       do so.

Id. We will not

become an “advocate for a party, or address arguments that are inappropriate or too
       poorly developed or expressed to be understood.”

Id. Court of Appeals

of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020                     Page 7 of 12
       evidence supports the findings, and whether the findings support the judgment.

Id. 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. at 123-24. [14]

  There is a well-established preference in Indiana “for granting latitude and

       deference to our trial judges in family law matters.”

Id. at 124

(citing In re

       Marriage of Richardson, 

622 N.E.2d 178

, 179 (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

       (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).

[15]   Father argues that the trial court erred in denying his petition to modify

       custody. He specifically asserts that the trial court erred by excluding in its

       order evidence regarding the best interests of the Children and a substantial

       change in circumstances that he claims was essential and undisputed. Father

       contends that this evidence was material to both the best interests of the

       Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020   Page 8 of 12
       Children and showed a substantial change in circumstances regarding the

       mental and physical health of the Children, the Children’s adjustment to home

       and school, and the interactions between the Children and Mother. He

       maintains that all of the evidence taken as a whole did not support the trial

       court’s decision to deny his petition to modify custody, and the ruling was

       clearly against the logic of the facts and circumstances.


[16]   The party seeking modification of a custody order “bears the burden of

       demonstrating [that] the existing custody should be altered.” Steele-Giri , 51

       N.E.3d at 124. “This more stringent standard is required to support a change in

       custody because permanence and stability are considered best for the welfare

       and happiness of the child.” Riggen v. Riggen, 

71 N.E.3d 420

, 422 (Ind. Ct.

       App. 2017) (internal quotations omitted).

[17]   Indiana Code section 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 [Indiana Code section 31-17-2-8] . . . .” Indiana

       Code section 31-17-2-8 provides that the trial court is to consider all relevant

       factors, including:


               (1) The age and sex of the child.


               (2) The wishes of the child’s parent or 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.
       Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020   Page 9 of 12
               (4) The interaction and interrelationship of the child with:


               (A) the child’s parent or parents;


               (B) the child’s sibling; and


               (C) any other person who may significantly affect the child’s best
               interests.


               (5) The child’s adjustment to the child’s:


               (A) home;


               (B) school; and


               (C) community.


               (6) The mental and physical health of all individuals involved.


               (7) Evidence of a pattern of domestic or family violence by either
               parent.


               (8) Evidence that the child has been cared for by a de facto
               custodian . . . .


[18]   A child custody determination is fact sensitive. In this case, the trial court

       listened to evidence over the course of two days. It heard testimony from

       multiple witnesses including Father, Mother, and the Children’s teachers. In its

       order, the trial court examined each of the factors listed above, considered the



       Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020   Page 10 of 12
       evidence presented that it believed was pertinent and determined that Father

       did not meet his burden and that custody should not be modified.


[19]   Father’s arguments focus on his claim that the trial court failed to consider

       certain evidence that he maintains was undisputed and material. Contrary to

       Father’s assertion that the trial court ignored undisputed, material evidence, the

       evidence he asserts was ignored was actually contradicted by Mother’s

       testimony. We grant latitude and deference to our trial judges in family law

       matters because 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. 

Steele-Giri, 51 N.E.3d at 124

. Here, the trial court was able to

       observe the witnesses and scrutinize their testimony and then made a

       determination on what evidence it deemed to be pertinent and credible. The

       trial court was within its authority to do so, and we do not second guess the

       trial court’s determinations. Father’s arguments are simply a request for this

       court to reweigh the evidence and reassess the credibility of the witnesses,

       which we do not do on appeal.

Id. [20]

  Father does not assert that the evidence presented at the hearing did not support

       the trial court’s findings or that the findings made by the trial court did not

       support the trial court’s conclusions. The evidence presented at the hearing

       supported each of the trial court’s factual findings such that they were not

       clearly erroneous. Relying on these findings, the trial court concluded that,

       Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020   Page 11 of 12
       “Mother is not financially well off. She struggles in comparison to Father’s

       financial resources, but that does not make her a poor mother. Mother has

       made some mistakes and has openly admitted to the mistakes in court.”

       Appellant’s App. Vol. II at 18. The trial court then concluded that based on a

       review of the evidence presented and “considered by the court in its entirety,”

       Father had not met his burden.

Id. We conclude that

there was ample evidence

       in the record to support a determination that there was not a substantial change

       in the circumstances and that a custody modification was not in the Children’s

       best interests. “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.” 

Steele-Giri, 51 N.E.3d at 124

. The trial court did not err in concluding that Father failed to meet his

       burden.


[21]   Affirmed.

       Pyle, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-DR-969 | November 19, 2020   Page 12 of 12

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