Dissenting judge implies majority reweighed evidence in custody reversal

Dave Stafford for www.theindianalwyer.com

A dissenting judge on an Indiana Court of Appeals panel that Wednesday reversed a child custody order implied the majority reweighed evidence to reach its conclusion.

Judge Patricia Riley, joined by Judge L. Mark Bailey, reversed denial of a trial court order denying a mother’s petition for modification of custody of minor daughter J.S. and rule to show cause in In Re the Marriage of: Amy Steele-Giri v. Brian K. Steele, 45A04-1412-DR-600. The majority granted custody to mother, remanded to the trial court for a determination of whether joint custody would be in J.S.’s best interest, and to establish father’s parenting schedule where distance is a factor.

“While we acknowledge the deference entitled to the trial court’s rulings in family law matters, in cases such as these, where the evidence at trial presents a different picture and the findings of the trial court are rife with errors, we have to reevaluate the level of deference granted,” Riley wrote for the majority. The decision grants custody to mother who now lives in Oregon.

In large part due to father’s change of employment that required J.S. to spend long hours in daycare, the majority held that a significant change in circumstance occurred that warranted modification of custody. Riley wrote that the trial court erred by applying an erroneous standard that focused solely on father’s situation as the predominant and decisive factor without regard for the totality of the change, and most importantly, its impact on J.S.

Dissenting Judge Michael Barnes wrote, “The standard of review in child custody matters is well settled. ‘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). … On appeal, it is not enough that the evidence might support some other conclusion, it must positively require the conclusion urged by the appellant before there is a basis for reversal.”

Barnes noted a guardian ad litem testified both mother and father “are good, involved parents” with whom J.S. has a wonderful relationship. The GAL declined to make a final recommendation because the case was “such a close call.”

“Based on this evidence, I believe this is the very circumstance in which long-standing precedent requires us to defer to the trial court’s assessment of witnesses and to affirm the trial court’s decision,” Barnes wrote.

The majority also found father in contempt, and on remand, the trial court will determine mother’s monetary damages, if any.

Mother claimed father failed to share details of J.S.’s care, academic progress, extracurricular activities and more as required under an agreed order. “Father is passive-aggressive in excluding Mother’s participation in J.S.’s upbringing,” Riley wrote for the majority.

“Due to the totality of the evidence before us, we find that the trial court’s decision denying Mother’s petition for rule to show cause is against the logic and effect of the facts and circumstances,” she wrote.