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FOR PUBLICATION

ATTORNEY FOR APPELLANT: JILL S. SWOPE Weiser Sterba & Wyllie, LLP Schererville, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: JAMES C. VAN WIEREN, Appellant-Respondent/CrossPetitioner, vs. JANE VAN WIEREN, Appellee-Petitioner/CrossRespondent. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 45A05-0603-CV-112

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Robert A. Pete, Judge Cause No. 45D05-9807-DR-1519

December 12, 2006 OPINION - FOR PUBLICATION BAKER, Judge

Appellant-respondent James Van Wieren appeals from the trial court's order ruling on a number of pending motions, including appellee-petitioner Jane Van Wieren's petition to modify and James's cross-petition to modify the parties' split physical custody arrangement. In particular, James argues that the trial court erred in: (1) refusing to modify the split physical custody arrangement; (2) refusing to hold Jane in contempt of court; (3) refusing to modify James's child support obligation retroactive to the date requested by James; and (4) refusing to order Jane to pay a portion of James's attorney fees. Finding no error, we affirm the judgment of the trial court. FACTS James and Jane entered into a Partial Property Settlement Agreement ("the Agreement") concerning child custody on March 15, 2001, which was merged with the parties' dissolution decree that was entered on April 6, 2001. The Agreement provided that James was to assume sole legal custody of the couple's five children, E.V.W., D.V.W., N.V.W., J.V.W., and T.V.W. The Agreement further provided that the parties would share split physical custody of the children, with James as the primary custodian, as follows: The parties shall alternate weeks in which they have the minor children from Thursday after school through the following Monday mornings when the children are returned to school or the other parent. Mondays, Tuesdays, and Wednesdays each week, the children shall be with [Jane] from the time they get out of school until [James] picks them up at six o'clock (6:00 p.m.). If [James] will be late for any reason, he shall contact [Jane] as soon as possible to let her know the exact time he will be picking the children up. Each parent shall be responsible for getting the children to their activities when that child is with them. 2

The parties shall alternate the children's birthdays on an annual basis. [Jane] shall receive Mother's Day and her birthday with the children each year and [James] shall receive Father's Day and his birthday with the children each year. The parties shall alternate the following holidays: [Listing of Major Holidays]. If a parent loses a normal "weekend" period with the children due to the other parent receiving a holiday, the regular alternating extended weekend schedule shall resume the following week, so one parent does not lose that weekend. The parties agree to exercise the first right of refusal with regard to the children's care during the parent's working hours. Appellant's App. p. 18-19. The Agreement provided that neither party would make derogatory remarks about the other in front of the children and that the couple agreed to abide by the preamble to the Lake County Visitation Guidelines then in place. The Agreement also provided that James would pay Jane $100 per week in child support. Unfortunately, Jane and James quickly proved their unwillingness to put aside their differences and cooperate for the children's sake. The record details troubling behavior on the part of both parties, including significant issues regarding communication about the children, a relentless pattern of parental alienation and derogatory comments made in front of the children, and allegations that James physically abused the children, though these allegations were later investigated and determined to be unfounded. On June 17, 2003, Jane filed a petition for modification of custody and child support, requesting that she be granted sole legal and physical custody of the children. James responded by filing a cross-petition for modification--also requesting sole custody--a rule to show cause, and a petition for custodial evaluation. The psychologist who had performed the custody evaluation for the family during the divorce proceedings 3

was appointed to serve again as the custody evaluator. The parties further stipulated to the appointment of a guardian ad litem (GAL) for all of the children. During the pendency of these proceedings, serious problems continued to develop within the family. In April 2004, Jane filed an emergency petition for modification of custody seeking an expedited ruling in her favor, alleging emotional abuse and neglect on the part of James, and bringing to the court's attention the distress of then-seventeenyear-old E.V.W. stemming from a recent medical problem. The court denied Jane's request. In May 2004, E.V.W. ran away from James's home and stayed with Jane, refusing to leave. By her own admission, Jane did not encourage the child to return to James's residence as required by the Agreement. Jane filed another emergency petition for modification of custody and for removal of the GAL, informing the court that E.V.W. wanted to remain with her and was distressed because of a recent gynecological problem and her relationship with James, requesting sole custody of all the children, and alleging that the GAL had failed to carry out her duties. James responded with a second petition for rule to show cause and citation, which informed the trial court that Jane had refused to return his phone calls or to inform James of E.V.W.'s medical appointments and detailed prognosis. The trial court determined that there was no emergency but it ordered the parties to maintain the status quo on a temporary basis, leaving E.V.W. in Jane's care and granting the parties joint legal custody as to the child, with parenting time to be worked out by the parties. The court also denied Jane's request to remove the GAL.

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During the months that followed, E.V.W. continued to refuse contact with James, and it appears from the record that Jane failed to encourage E.V.W. to reunite with her father and refused to discuss the child, including her medical problems, with James. Throughout the pendency of this case, James continued to pay Jane $100 per week in child support. The trial court held a hearing on December 21, 2005. The custody evaluator and the GAL submitted reports to the trial court and testified at the final hearing that they believed James and Jane are unable to maintain a split physical custody arrangement without causing significant and long-term harm to the couple's children. They cited, in particular, the pattern of parental alienation and derogatory comments to which the children were subjected, and both witnesses expressed an opinion that Jane was at far greater fault on the matter than James. The GAL and the evaluator expressed concern regarding the children's development and indicated their belief that the children would continue to experience distress and difficulty as long as a split physical custody arrangement was in place. They both opined that E.V.W.'s estrangement from her father resulted from Jane's influence rather than from James's parenting and they expressed concern that as the other four children grow up Jane will influence them in a similar fashion. Other witnesses before the court generally echoed the opinions of whichever party called them as witnesses and, regardless of which party they "sided" with, recognized the failure of the split physical custody arrangement. Jane's witnesses reported that she was a good mother who participated in her children's lives, created a loving and supportive 5

atmosphere, and dealt admirably with the numerous difficulties James forced upon her as a co-parent. James's witnesses reported that he was a good provider who maintained a clean and decent home for his children, treated each of them well, encouraged them to act responsibly, and ensured that their needs were met. The trial court entered an order on February 6, 2006, providing in pertinent part as follows: 1. The Court does not find either the Mother or the Father in contempt of Court. *** 4. The only modification of the Court's prior Orders relating to custody shall be with respect to the parties' daughter, [J.V.W.], born July 22, 1992. The Court finds that it is in her best interest that the Court enter an Order of modification. 5. The Court finds that [J.V.W.] is the sole female in an all male household and needs more time with Mother. Accordingly, the parties are to share actual physical custody (i.e. time) with [J.V.W.] equally; that is 50/50. The parties shall have 30 days within which to stipulate to a schedule for such equal division of physical custody. In the event the parties are unable to so stipulate or the Court is not in receipt of said stipulation, the Court will determine the schedule. ***** 8. Each party shall pay and be responsible for their respective attorney's fees. 9. All other Orders not specifically modified herein shall remain in full force and effect. Appellant's App. p. 173-74. James now appeals. 1

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E.V.W. is now nineteen years old. It is apparent that the trial court's final order contemplates E.V.W. remaining in Jane's home, appellant's app. p. 173, and although it is not entirely clear from James's brief, given E.V.W.'s age, we conclude that James only challenges the trial court's order with respect to the four younger children.

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DISCUSSION AND DECISION At the outset, we note that Jane has failed to file an appellee's brief. "Indiana courts have long applied a less stringent standard of review with respect to showings of reversible error when an appellee fails to file a brief." McKinney v. McKinney, 820 N.E.2d 682, 685 (Ind. Ct. App. 2005). Where no appellee's brief has been filed, the judgment may be reversed if the appellant's brief presents a prima facie case of error. Id. In this context, prima facie error is error at first sight, on first appearance, or on the face of it. Id. With this in mind, we turn to James's arguments. I. Modification of Joint Custody Arrangement James first argues that the trial court erred when it denied his request to modify the parties' split physical custody arrangement with respect to the four youngest children. In general, we review custody modifications for an abuse of discretion, with a "preference for granting latitude and deference to our trial judges in family law matters." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). When reviewing a trial court's ruling on a petition to modify custody, we may neither reweigh the evidence nor judge the credibility of the witnesses. Leisure v. Wheeler, 828 N.E.2d 409, 414 (Ind. Ct. App. 2005). Rather, we consider only the evidence most favorable to the judgment and any reasonable inferences that may be drawn from that evidence. Id. A petitioner seeking modification of a child support order bears the burden of demonstrating that the existing custody arrangement should be altered. Id. A 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 or more of the factors, set forth in 7

Indiana Code section 31-17-2-8, that a court may consider when it originally determines custody. Ind. Code

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