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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: KATHARINE VANOST JONES Evansville, Indiana ATTORNEYS FOR APPELLEE: MICHAEL C. KEATING YVETTE M. LAPLANTE Keating & LaPlante Evansville, Indiana

Jan 12 2009, 8:41 am

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
BOBBIE L. GREEN, Appellant-Respondent, vs. RUSSELL E. GREEN, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

CLERK

No. 63A04-0806-CV-350

APPEAL FROM THE PIKE CIRCUIT COURT The Honorable Jeffrey L. Biesterveld, Judge The Honorable Joseph L. Verkamp, Referee Cause No. 63C01-0710-DR-329

January 12, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues

Bobbie Green appeals the trial courts order in this dissolution proceeding awarding Russell Green custody of the couples child, T.G.; requiring Bobbie to pay child support; and distributing property. On appeal, Bobbie raises three issues, which we restate as: (1) whether the trial erred when it granted primary physical custody of T.G. to Russell; (2) whether the trial court erred in its calculation of child support; and (3) whether the trial court erred in its distribution of property. Concluding the trial court committed no error, we affirm. Facts and Procedural History1 Bobbie and Russell were married on July 4, 1997. Their only child, T.G., was born on May 17, 1997. At the time of their marriage, Russell worked as a police officer. However, Russell was injured in the line of duty in late November of 2004. Russells injuries left him permanently disabled, and he began collecting a police disability pension.2 Subsequently, Bobbie and Russell relocated from Merrillville, Indiana, to their present marital residence in Petersburg, Indiana. The marital residence sits on approximately fifty acres of reclaimed strip mining land. Bobbie and Russell keep many animals on the land including horses, cattle, cats, and dogs. T.G. has emotional attachments to at least one of the horses and one of the cats.

The statement of facts in an appellate brief should be a narrative statement of facts stated in the light most favorable to the judgment and should not be argumentative. Indiana Appellate Rule 46(A)(6); Curtis v. Clem, 689 N.E.2d 1261, 1262 n.1 (Ind. Ct. App. 1997). Neither party in this case has submitted an accurate statement of facts. Rather, each party has presented the facts in the light most favorable to that party, which has made our review of this case much more difficult. Russell receives his disability pension tax-free. At age fifty-five, his disability pension ceases and Russell will receive a regular retirement pension of an unknown amount, from which taxes will be withheld.
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Bobbie works as a registered nurse at Deaconess Hospital in Evansville. Bobbie works three twelve-hour shifts per week scheduled in six week increments. From 2007 until just prior to the trial courts final hearing in this matter, Russell worked as a dispatcher for the Pike County Sheriffs Department. Bobbie and Russell each submitted child support obligation worksheets to the trial court, both of which listed their respective weekly incomes as $996.00 and $712.00. Bobbie has a single child from a previous marriage, T.P. Bobbie shares legal custody of T.P. with T.P.s father, but is not obligated by court order to pay child support for T.P. Although T.P.s father has primary physical custody, Bobbie exercises regular parenting time with T.P. After Bobbie and Russell relocated to Petersburg, T.P. began living with the couple on a regular basis. Russell and T.P. maintained a good relationship throughout much of that time. However, just prior to the couples separation, Russell and T.P. had a verbal fight and T.P. returned to live with her father. Since that time, T.P. has stayed with her mother on numerous occasions and on a couple of occasions has spent time with Russell. Russell has two children from a previous marriage. Russell does not have legal custody of the two children, nor does he exercise visitation or parenting time.3 Russell pays child support for his children in the amount of $105.00 per week plus $15.00 per week toward the repayment of an arrearage. Prior to their separation, both Russell and Bobbie shared parenting responsibilities

The record does not disclose whether Russell is entitled to parenting time or visitation pursuant to a child custody order, but the record is clear that Russell has not seen his other two children for many years.

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with regard to T.G. Since their separation, T.G. has primarily resided with Russell at the marital home. At the time of the trial courts final hearing, Bobbie was living with her boyfriend, and T.G. had spent several nights there with Bobbie. The parties agreed to provisional orders granting Bobbie fifty percent parenting time in alternating increments of three days and four days per week.4 Both parties presented self-serving testimony as to who or what caused Bobbie to see T.G. far less than fifty percent of the time prior to the trial courts final hearing.5 Beginning around July of 2007, Russell began to suspect Bobbie of infidelity. Thus began a series of physical and verbal altercations between the two. On July 21, 2007, following a physical fight, Bobbie took T.G., who had been at a friends house, and went to

Counsel are reminded that Indiana Appellate Rule 50(A)(2) requires the parties to submit appendices which include, inter alia, "the appealed judgment or order, including any written opinion, memorandum of decision, or findings of fact and conclusions thereon relating to the issues raised on appeal ... [and] pleadings and other documents from the Clerks record in chronological order that are necessary for resolution of the issues raised on appeal." The chronological case summary lists several documents that would have been helpful to our review but that neither party submitted, including: the petition for dissolution, agreed provisional orders, application for citation of contempt, and motions to correct error and to reconsider. The omission of these documents also made our review of this case more difficult. Much of the parties hearing testimonies, statements of facts, and arguments consist of conflicting, one-sided views of events in the couples marriage, e.g. appropriateness of disciplinary action, treatment of animals, instigation and level of altercations between the parties, etc. It is the trial courts job to judge the credibility of the witnesses and we will not reweigh the evidence or reassess the credibility of the testimony. Leonard v. Leonard, 877 N.E.2d 896, 900 (Ind. Ct. App. 2007). The trial court has before it, within its sight and hearing, the physical presence of the parties and oftimes their children. It hears their testimony, notes their actions and reactions, observes their sincerity, emotions, inflections and tones of voice, apparent state of health, and experiences the tenseness of the human drama enacted there within the confines of the court room. The appellate tribunal, on the other hand, has before it only the cold, written record. It sees only words, phrases, sentences, questions, answers, and exhibits. It is without the authority to weigh the evidence and determine(s) only that the requisite principles of law have been observed and duly applied, and that justice has been fairly and impartially administered. Blue v. Brooks, 261 Ind. 338, 341, 303 N.E.2d 269, 271 (1974) (citation omitted). As such, we recite the facts as required by our standard of review in a light most favorable to the trial courts judgment
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Bobbies parents house. Later that night, Russell phoned Bobbie and made her believe he had attempted suicide by firing a shotgun into the water. After Bobbie and the police arrived, Russell agreed to admit himself to inpatient treatment at Cross Pointe psychiatric facility. Russell was diagnosed with depression and post-traumatic stress disorder and given a prescription for medication. After seven days, Russell was discharged and returned home after a brief stay with his father. Russell does not currently take his prescribed medication. On one occasion after the parties separation, Bobbie picked up T.G. at the marital residence. While Bobbie and T.G. sat in Bobbies car, Russell and Bobbie engaged in a verbal argument. During the argument, Russell hit Bobbies car with his fist resulting in a small dent. Since the parties separation, Russell has fallen behind on mortgage payments on the marital residence. Prior to the final hearing, Russell contacted the mortgage company and made arrangements to repay the past-due amount in installments. Russell filed a petition for dissolution of marriage on October 19, 2007. Prior to the final hearing, the trial court interviewed T.G. privately in chambers. Neither party nor their counsel were present for the interview, and no transcript of the interview is included in the record. The trial court held a hearing on February 15 and 22, 2008, and issued its order and decree of dissolution on March 4, 2008. Bobbie filed a motion to correct error and to reconsider on March 25, 2008. The trial court held a hearing on the motion on April 25, 2008, and denied the motion, apparently without a written order, on May 22, 2008.6 Bobbie

Neither party submitted a written order in the appendix, nor does the chronological case summary indicate an entry in the record of judgments and orders.

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now brings this appeal. Discussion and Decision I. Custody of T.G. Child custody decisions "fall squarely within the discretion of the trial court and will not be disturbed except for an abuse of discretion." Liddy v. Liddy, 881 N.E.2d 62, 68 (Ind. Ct. App. 2008) (quoting In re B.H., 770 N.E.2d 283, 288 (Ind. 2002)). An abuse of discretion occurs when the trial courts decision is clearly against the logic and effect of the facts and circumstances before it or the reasonable inferences drawn therefrom. Id. In the present case, the trial court had a substantial amount of contradictory evidence before it. We will not substitute our judgment for that of the trial court, and we will not re-weigh the evidence or judge the credibility of the witnesses. Leonard, 877 N.E.2d at 900. Therefore, we may not reverse the trial courts decision simply on the basis of conflicting evidence. In re Marriage of Julien, 397 N.E.2d 651, 653 (Ind. Ct. App. 1979). The trial court shall determine custody in the best interests of the child with no presumption favoring either parent. Ind. Code

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