Preview:

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: I. MARSHALL PINKUS Pinkus & Pinkus Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: PAUL A. HADLEY RYAN A. BECK Danville, Indiana

IN THE COURT OF APPEALS OF INDIANA
WESTBROOK SCOTT ALLEN, Appellant-Petitioner, vs. GLORIA JENKINS, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 32A01-0606-JV-230

APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable David H. Coleman, Special Judge Cause No. 32D02-0511-JP-2

December 29, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellant-Petitioner Westbrook Scott Allen ("Father") appeals an order of the Hendricks Superior Court on Father's petition to establish paternity and to determine custody and support of C.A., Father's child with Appellee-Respondent Gloria Jenkins ("Mother"). We reverse the custody and child support provisions of the order and remand for further proceedings. Issues Father presents five issues for review. We address the dispositive issue: I. Whether the trial court applied the appropriate legal standard in the custody determination.

Because it is likely to arise on remand, we also address the following issue: II. Whether the trial court properly imputed income to Father based upon the earnings of his wife. Facts and Procedural History C.A. was born on December 4, 1995, at which time Father signed a Paternity Affidavit. Mother and Father lived together until C.A. was two and one-half years old. Thereafter, Mother and Father informally agreed upon the division of parenting time and child support. On July 27, 2004, Father filed a Petition to Establish Paternity, Custody and Support. He sought to be awarded the legal and physical custody of C.A. Evidence was heard on January 5, 2006 and on April 13, 2006. On May 5, 2006, the trial court ordered that Mother retain custody of C.A. and that Father have parenting time according to the Indiana Parenting Time Guidelines and pay child support of $153.00 weekly. 2

Father filed a motion to correct error, which was deemed denied. He now appeals. Discussion and Decision I. Custody Standard Father contends that the trial court applied an incorrect legal standard in determining custody, evidenced by the language of the custody order, as follows: The petitioner failed to present egregious evidence showing that the respondent is unfit, or that she is unable to care for [C.A.]. A change of physical custody from the respondent to the petitioner would completely disrupt [C.A.'s] life. A change of physical custody is not justified merely because the petitioner decided to move to the Carmel area and it will be more convenient for him to have [C.A.] in his home most of the time. Additionally, the petitioner's household will be under stress when the new baby arrives. (App. 6.) A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. In re the Marriage of Nienaber, 787 N.E.2d 450, 454 (Ind. Ct. App. 2003). Indiana Code Section 31-14-13-1 provides in pertinent part: "A biological mother of a child born out of wedlock has sole legal custody of the child, unless a statute or court order provides otherwise[.]" Because Mother had the sole legal custody of C.A. for ten years, a modification of custody standard, rather than an initial determination of custody standard, is appropriate. See In re Paternity of Winkler, 725 N.E.2d 124, 128 (Ind. Ct. App. 2000) (holding that a custody modification standard applied when the mother had custody of an out-of-wedlock child for twelve years because "the same concerns about stability and continuity present in sole and joint custody modifications are present"). But see Hughes v. Rogusta, 830 N.E.2d 898, 901 (Ind. Ct. App. 2005) (finding that the custody modification standard did not apply where the father did not acquiesce in the mother's custody but immediately filed to establish paternity and determine custody after the mother moved out). 3

Indiana Code Section 31-17-2-21 provides that a court may not modify a child custody order unless (1) modification is in the child's best interests and (2) there is a substantial change in one of several factors that a court may consider in initially determining custody. Those factors include the following: (1) The child's age and sex; (2) the wishes of the child's parent or parents; (3) the child's wishes, with more consideration given to the wishes of a child who is at least fourteen years old; (4) the child's interaction and interrelationship with his or her parents, siblings, and any other person who may significantly affect the child's best interests; (5) the child's adjustment to his or her 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; and (8) evidence that the child has been cared for by a de facto custodian. Ind. Code

Download Westbrook Scott Allen v. Gloria Jenkins.pdf

Indiana Law