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.

MEMORANDUM DECISION

BRADFORD, Judge.

Case Summary

Appellant-Petitioner Donald Searing ("Father") appeals the trial court's custody order awarding primary physical custody of minor child, C.S., to Appellee-Respondent Karen Vivas ("Mother"). On appeal, Father argues (1) the trial court's findings of fact are not supported by the evidence and (2) the trial court's conclusions of law are unsupported by the findings of fact. Specifically, Father argues that it is in C.S.'s best interest for Father to have primary physical custody and the trial court's conclusion otherwise is clearly erroneous. Mother did not file an appellee's brief. Finding that the trial court's conclusions are not supported by the evidence when reviewed under a prima facie standard, we reverse.

Facts and Procedural History

Father and Mother met online. Father is from Terre Haute, Indiana and Mother is from Manila, Philippines. In March 2010, Father travelled to the Philippines to marry Mother and lived in the Philippines with Mother for six months before moving back to the United States to work and petition for Mother to immigrate to the States. While Father was in the Philippines, Mother became pregnant. The child, C.S., was born in the Philippines on November 3, 2010 and is a citizen of both the United States and the Philippines. Mother and C.S. came to the United States in June 2012 to live with Father in Terre Haute, Indiana. Mother is a legal permanent resident and is permitted to work in the United States. In the time prior to and after moving to Indiana, Mother took care of C.S. full-time and Father worked to support the family.

On April 9, 2014, Mother and C.S. left for a six-week vacation to visit family in the Philippines. The couple had been fighting prior to the vacation and, two days into the vacation, Father told Mother he wanted a divorce. Father told Mother that he would continue to support her until she found a job and obtained her own apartment but Mother refused. Mother and C.S. were scheduled to return in May but did not return to the United States until August 25, 2014 when Mother's friends offered Mother and C.S. a place to live in Texas. At some point, Mother and C.S. moved to Michigan, where Mother worked for Meijer, until finally settling in California in December 2014. In the year following the parties' separation, Mother travelled with C.S. to the Philippines, Hong Kong, Texas, Michigan, California, Las Vegas, and Singapore. Mother never received consent from Father to travel with C.S. and often did not inform him of when or where she traveled with C.S.

Following their separation, the parties had extensive communication through text and Facebook messages, many of which were entered into evidence. Many of the messages from Mother indicate vindictive behavior against Father and reveal Mother's intent to keep C.S. from speaking to or seeing Father. Mother also exposed C.S. to details about the parties' divorce and frequently disparaged Father to C.S. Mother admitted to thwarting Father's ability to communicate with C.S. and preventing Father from having "meaningful parenting time." Tr. Vol. 4, p. 137.

In November of 2014, Father saw C.S. for the first time since he and Mother left for the Philippines in April. Father became aware that Mother and C.S. were in Michigan after a Michigan CVS called Father regarding a prescription for C.S. Prior to receiving that call, Father did not know that Mother and C.S. had returned to the United States. That weekend, Father drove to Michigan and spent approximately two hours with C.S. at a mall under Mother's supervision. Father had been unable to speak to C.S. for approximately five months prior to this visit. Mother testified that she would not have told Father of her and C.S.'s location if the CVS had not called Father. Father would not see C.S. again until the trial court ordered parenting time in April of 2015.

In December of 2014, Father purchased Christmas gifts for C.S. and made them available for pick-up at a California Walmart near Mother's residence because Mother would not provide an address where the gifts could be shipped. Mother later told Father to cancel the presents because she could not make the drive to the Walmart in time. After the order had been cancelled, Mother took C.S. to pick up the presents and told C.S. that Father did not get him any presents.

Father filed his petition for dissolution of marriage on July 30, 2014. Summons was issued by international mail to Mother's address in Manila but was returned indicating that Mother had not been served. Father served Mother by publication in November of 2014. The trial court held an initial hearing on December 11, 2014 at which Mother was not present. At the hearing, the trial court dissolved the parties' marriage, split the parties' debts, indicated that custody could not be determined due to Mother's absence, and ordered that Father is entitled to parenting time pursuant to the Indiana parenting time guidelines until custody could be determined.

On January 12, 2015, Mother requested relief from the judgement and a hearing was set. On January 30, 2015, Father requested an initial custody and support determination. On February 20, 2015, the trial court held a scheduling hearing at which Mother was present by telephone. The trial court set a final hearing for May 4, 2015 and ordered that, because "[Father] has only seen [C.S.] for a few hours in the last ten (10) months," Father be permitted to Skype with C.S. every Saturday and that the parties arrange dates during which Father can fly to California to visit C.S. Tr. Vol. 2, p. 7. Mother did not agree to any dates for Father's visitation.

On March 31, 2015, Father filed a motion for emergency hearing and a verified motion for restraining order as to C.S.'s passport. On April 8, 2015, an emergency hearing was held to set dates for Father's visitation. The trial court ordered that Mother would make C.S. available for pick up on April 19, 2015, that Father would pick up C.S. in California on that date and return to Indiana with C.S., and that C.S. would stay with Father until the final hearing on May 4th. The trial court warned Mother that she would be held in contempt if she failed to abide by the order, at which point Mother made the following statement: "Yeah but I am also concerned on how, my staying in Indiana that why I, I really need ah, I refuse to, I absolutely refusing for him to go to have to go to Indiana. Cause I am trying to obtain a petition of my son, suing the visitation of his father over here in California." Tr. Vol. 3, p. 8. The trial court responded by saying "I am going to let you talk to your attorney before you make any more statements about blatantly disregarding an order of this court. So I suggest you talk to your attorney privately and I am going to disregard the statement that you just made that basically said, you are going to ignore this court's order." Id. at 9. Mother ultimately complied with the trial court's order.

The trial court held a hearing on May 4, 2015 to determine custody and settle all other pending issues. Father submitted several exhibits into evidence including pay stubs, money transfer records, and over 600 text and Facebook messages exchanged between the parties. Father submitted a transaction history of his account with a money transfer service which shows that he sent Mother $2200 in April and May of 2014 while Mother and C.S. were in the Philippines. The relevant portions of the parties text communications are as follows:

Petitioner's Ex. 1, 4-7.

At the time of the final hearing, Father was living in Terre Haute with his new wife and their then-two-month-old son. Father makes $14.36 per hour and works approximately forty hours per week. While living in Michigan, Mother was making $9.57 as a warehouse engineer. At the time of the final hearing, Mother was making $10.00 an hour working approximately thirty hours per week in California. Mother testified that she was received a degree in industrial engineering in the Philippines and worked for Shell Oil Company in Manilla. Mother stated that she is unable to work in the United States as an engineer until she completes certain classes and has her transcripts certified. At the time of the final hearing, Mother had not obtained any such certification.

On May 27, 2015, the trial court issued the following order:

Appellant's App. pp. 20-23 (footnote in original).

Discussion and Decision

Father contends that the trial court's award of primary physical custody to Mother is clearly erroneous and that it is in C.S.'s best interest that Father have primary physical custody. Father argues that the trial court's findings of fact are not supported by the evidence and that the trial court's judgment is unsupported by its findings.

Standard of Review

"Child custody determinations fall squarely within the discretion of the divorce court and will not be disturbed except for an abuse of discretion." Aylward v. Aylward, 592 N.E.2d 1247, 1250 (Ind. Ct. App. 1992). Where, as here, the trial court issues findings and conclusions pursuant to Indiana Trial Rule 52(A), our standard of review is two-tiered.

Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002) (citations omitted).

We note that Mother has not filed an appellee's brief. In such circumstances, we do not undertake the burden of developing arguments for the appellee. Maser v. Hicks, 809 N.E.2d 429, 432 (Ind. Ct. App. 2004). When an appellee does not file a brief, we apply a less stringent standard of review and may reverse the trial court when the appellant establishes prima facie error. Id. "Prima facie" is defined as "at first sight, on first appearance, or on the face of it." Id. (quoting Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App. 2003).

I. Trial Court's Findings of Fact

Father specifically challenges eight of the ten findings of fact outlined in the trial court's order.3 We address the findings which we find dispositive.

Appellant's App. p. 21. Father argues that Mother's nationality is irrelevant and that the trial court is essentially rationalizing and condoning Mother's deleterious behavior by awarding Mother custody despite her alleged efforts to alienate C.S. from father. Father claims that the trial court "ignored that all of the communications that can reasonably be described as having contained vitriol, anger and threats were from Mother to Father." Appellant's Br. p. 27. We agree.

We fail to see how being from a different culture in any way justifies or explains Mother's attempts to thwart parenting time or denigrate Father to C.S. Similarly, although Father may regret the timing of his decision to reveal his desire to divorce Mother while she was in the Philippines, Mother's resulting poor emotional state does not lessen the severity of her yearlong alienation of C.S. from Father. The trial court found that both Mother and Father sent accusatory messages, made regrettable choices, and could "with equal force" pick out evidence supporting their own testimony. However, a thorough review of the messages exchanged between the parties overwhelmingly, if not entirely, supports Father's arguments regarding (1) Mother's alienation of the child from Father by disparaging Father and preventing communication with C.S., (2) Father's monetary support of Mother and C.S., (3) Mother's repeated dishonesty to Father and to the trial court, (4) indications that Mother has been emotionally unstable, and (5) evidence that C.S.'s time with Mother in the past year has had a detrimental effect on C.S. both mentally and physically. Accordingly, we find that the trial court's findings are unsupported by the evidence.

II. Trial Court's Conclusions of Law

Indiana Code section 31-17-2-8 requires that a court must enter a custody order consistent with the best interests of the child and consider the following factors:

Additionally, this court has often noted that stability and permanency is of significant importance for children. H.G. v. Ind. Dep't of Child Servs., 959 N.E.2d 272, 293 (Ind. Ct. App. 2011) ("A child's need for stability is of great importance."); Haley v. Haley, 771 N.E.2d 743, 747 (Ind. Ct. App. 2002) ("as a general proposition, stability and permanence are considered best for the child.").

Father argues first that "the [trial] court did not do a best interest analysis regarding the custody of [C.S.]." Appellant's Br. p. 30. However, the trial court's order specifically states that it did consider the statutory factors. "Having reviewed the testimony and evidence, having observed the witnesses while testifying, and considering all of this in light of the factors set forth in I.C. § 31-17-2-8, it is hereby ordered. . . ." Appellant's App. pp. 20-21. The trial court did not make specific findings on each factor; however, the trial court is not required to do so unless requested to do so by one of the parties. Hegerfeld v. Hegerfeld, 555 N.E.2d 853, 856 (Ind. Ct. App. 1990).

Father also contends that it is in C.S.'s best interest that Father have primary physical custody and that the trial court's determination to the contrary is clearly erroneous. We agree.

1. Age and Sex of the Child

Although neither C.S.'s age nor gender are of particular importance in the best interest analysis, we note that Mother's frequent travelling with C.S. may be detrimental considering his young age. Mother testified that in the eight months prior to the hearing, she and C.S. had traveled to the Philippines, Hong Kong, Texas, Michigan, California, Las Vegas, and Singapore and that they lived for an extended period in at least four different places—Texas, Michigan, California, and the Philippines—during that time. C.S. was three and four years old during this period. Permanence and stability are of particular importance at such a young age and it appears Mother has provided little stability for C.S. in the year she has had custody. See generally J.K.C. v. Fountain Cty. Dep't of Pub. Welfare, 470 N.E.2d 88, 93 (Ind. Ct. App. 1984) (noting that permanence and stability are particularly important for children approaching school age).

2. The Wishes of the Child's Parents

Both Father and Mother requested primary physical custody of C.S. However, Mother at several points in the year prior to the final hearing stated that she was unable to take care of C.S. and thought C.S. would be better off somewhere else. In April of 2014, Mother asked Father to take C.S., however, she changed her mind after Father sent her money for airfare to return to the United States. In November of 2014, Mother told Father that she thought it would be best for C.S. to live with her family in the Philippines while Mother stayed in California despite the fact that Father offered to take C.S.

3. The Wishes of the Child

There is no indication in the record of the child's preference regarding primary placement.

4. The Interaction and Interrelationship of the Child with Others

The record suggests that C.S. has a positive relationship with both parents. C.S.'s relationship with Father may have been strained during 2014 due to Mother blocking communication between Father and C.S, preventing Father from seeing C.S., and disparaging Father to C.S.

Much of Father's family lives near Father in Terre Haute, has been actively involved in C.S.'s life, and has a good relationship with C.S. Father's sister, Amanda Sanders, travelled with Father to pick up C.S. from California and testified that it's been "amazing" for the family to have C.S. back. Tr. Vol. 4, p. 84. Sanders and Father's sister-in-law, Vickie Searing, testified that C.S. was very happy while back with Father in the weeks prior to the final hearing. Since divorcing Mother, Father has remarried and has had a child with his new wife.

As of the final hearing, Mother was living in California with friends. Mother's boyfriend, Jon, helps take care of C.S., helps support Mother and C.S and, according to Mother, has a good relationship with C.S.

5. The Child's Adjustment to the Child's Home, School, and Community

According to Mother, C.S. was getting ready to start pre-kindergarten classes at the time of the May 2015 hearing. Based on his young age and frequently changing living situation, there is little indication of how he has adjusted to his current home and community.

6. The Mental and Physical Health of all Individuals Involved

C.S. has dealt with physical and mental health issues. According to Mother, C.S. developed emotional issues in the year preceding the May 2015 hearing, while in Mother's care. Mother testified that C.S. was scheduled to begin attending a therapeutic school in California in the summer of 2015 because he is "emotional and violent." Tr. Vol. 4, pp. 119-120. Mother also stated that C.S. would suffer emotional outbursts in response to Mother becoming upset about domestic and legal issues with Father.

Mother frequently told C.S. information about Mother and Father's domestic and legal issues which upset C.S. In a text message, Mother states that her boyfriend "[was] surprised how much knowledge [C.S.] has about the divorce." Tr. Vol. 4, p. 58. During a skype session between Father and C.S., Mother told C.S. that "he had to talk to [Father] or [Father] was going to put her in jail." Tr. Vol. 4, p. 56. Mother testified that she did not think it was inappropriate to tell C.S. such things. On one occasion, C.S. asked Mother why she was crying, and Mother responded that it was because she "was scared he was going to live with his dad." Tr. Vol. 4, p. 128. Mother often commented that Father abandoned her and C.S. and that C.S. did not need Father in his life and was better off without him. Mother stated she "would try and hide [C.S.]" and that she told [C.S.] that Father was trying to take him from her. Tr. Vol. 4, p. 64. Mother stated that she prevented Father from speaking to C.S. because C.S. would "flare up and be violent" after Skyping or speaking to Father because he wished to see Father or speak to him more. Tr. Vol. 4, p. 112.

C.S. also had physical issues while in Mother's custody. In April of 2014, while in the Philippines, C.S. developed a severe rash and blisters over a large area of his buttocks. Upon being returned to Father a year later in April 2015, Father took C.S. to the doctor where he was diagnosed and treated for scabies. C.S. has significant scarring from the untreated scabies and Mother testified that he's embarrassed by the scars. It appears that Mother had taken C.S. to the doctor to be treated but did not follow up with treatment.

Father offered to help pay for C.S.'s medications and had previously requested that Mother allow him to put C.S. on his medical insurance but Mother denied Father's request because Mother did not want Father to be able to claim C.S. on his taxes. On November 23, 2014, Father and Mother exchanged the following texts:

Petitioner's Ex. 1. Father did obtain a new job the following week which provided medical benefits to dependents. Mother was terminated from the job she held at Meijer shortly after the time of these texts.

The record also suggests that Mother has had her own emotional issues. Messages from Mother reveal that she has had frequent and severe emotional outbursts and mood swings, has made threats to Father, and frequently fabricates stories. Several times, Mother told Father and Father's sister that she wanted to commit suicide. Mother also told Father of an instance when she attempted suicide and was in a coma, which she later admitted was a lie. Mother told Father that she had a friend talk to the trial court judge which she admitted was a lie and which she said in order "to scare [Father]." Tr. Vol. 4, p. 136. Mother repeatedly told Father, and represented to the court, that she was a Delta Airlines employee and could obtain free flight passes for herself, C.S., or Father. Mother admitted that this was a lie. Mother attempted to have the divorce set aside because she claimed she was not served and did not know about the proceedings. However, the trial court determined that this was a lie based on a text message sent by Mother indicating that she had a friend check the docket and that she knew, prior to the initial hearing, that Father filed for divorce pro se.

7. Evidence of a Pattern of Domestic or Family Violence by Either Parent

There were unsubstantiated allegations of domestic violence made by both parties against one another. Father denied the allegations and Mother was not questioned regarding Father's allegations against her. Father's two witnesses, Sanders and Searing, denied any knowledge of domestic abuse.

8. Evidence that the Child has Been Cared for by a De Facto Custodian

There is no evidence that C.S. has been cared for by a de facto custodian.

9. Additional Considerations

As we stated above, permanency is of significant importance in considering the best interests of a child. Haley, 771 N.E.2d at 747. As of the hearing, Mother was living with friends rent-free and paying only for utilities. In the year prior to the hearing, Mother had lived in four different cities, apparently staying with friends and family in each city. Father has remarried and lives in Terre Haute with his wife and son. Father also has a large extended family in Terre Haute that are available to watch C.S. if need be. In terms of stability, it seems clear that Father is much better equipped than Mother to provide C.S. with a stable and permanent home environment.

The trial court in this case was making an initial custody determination. At an initial determination of child custody, the trial court is concerned only with the best interests of the child and there is no presumption in favor of either parent. Ind. Code § 31-17-2-8; Spoor v. Spoor, 641 N.E.2d 1282 (Ind. Ct. App. 1994). The best interest analysis overwhelmingly suggests that placement with Father is in the best interest of the child. Mother has demonstrated that she is emotionally unstable, has provided C.S. with little consistency in his living situation, has threatened to leave the country with C.S. permanently to avoid the court's jurisdiction, shares inappropriate personal and legal information with the child, and does not acknowledge the potential deleterious effects her actions may have on C.S, choosing instead to blame Father for C.S.'s emotional issues. Furthermore, Mother failed to provide adequate medical treatment for C.S.'s scabies for a year resulting in significant scarring.

We acknowledge that the trial court found that Mother was credible when she stated that she would comply with future court orders regarding parenting time. Judging the credibility of witnesses is the trial court's purview and we do not disturb such determinations on appeal. Dallas v. Cessna, 968 N.E.2d 291, 296 (Ind. Ct. App. 2012). However, a promise to comply in the future does not provide Mother with a free pass for her yearlong attempts to impede Father from seeing his son and otherwise disparaging Father to C.S. It appears that the trial court essentially ignored or justified much of Mother's vindictive behavior. Although generally regrettable, this behavior is particularly troubling due to the detrimental effect it seems to have had on C.S.

Additionally, despite the trial court crediting Mother's promise to comply with its orders, it appears that the trial court had reservations about this decision. The trial court seemed to acknowledge that Mother may be a flight risk due to the fact that Mother previously kept C.S. for an extended period in the Philippines and made multiple threats to take C.S. back to the Philippines to avoid the court's jurisdiction. Accordingly, the trial court ordered that Father maintain possession of C.S.'s passports. The trial court also stated that "[t]ime will tell if faith in [Mother's] word is justified." Appellant's App. p. 21.

Although we give the trial court significant discretion in family law matters, there is simply a complete lack of evidence which suggests that Mother is better equipped to parent the child and that it is in the best interest of the child for Mother to have primary physical custody. While there is significant evidence that Mother's actions have detrimentally affected C.S. and questions regarding her ability to provide a stable home life for C.S., there is no substantial evidence that would create any similar concerns regarding Father's ability to care for C.S. Accordingly, we find that the trial court's conclusions are clearly erroneous.

Conclusion

We find that the trial court's findings of fact are unsupported by the evidence and that the trial court's conclusions of law are clearly erroneous. Accordingly, we reverse the trial court's order granting physical custody of C.S. to Mother, order that Father be given physical custody of C.S., and remand for recalculation of child support obligation in accordance with this decision.

Reversed and remanded with instructions.

Pyle, J., concurs.

Baker, J., dissents with opinion.

BAKER, Judge, dissenting.

I respectfully dissent. It is well established that in family law matters, we must give wide latitude and deference to trial court judges; there is good reason for this deference:

Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). In reviewing a child custody determination, which requires proof by clear and convincing evidence, an appellate court may not impose its own view as to whether the evidence is clear and convincing but must determine, by considering only the probative evidence and reasonable inferences supporting the judgment and without weighing evidence or assessing witness credibility, whether a reasonable trier of fact could conclude that the judgment was established by clear and convincing evidence.

In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002).

In this case, the trial court heard testimony from multiple witnesses and considered voluminous documentary exhibits. While the trial court expressed concern about the manner in which Mother has behaved over the past two years, it found that her behavior was "explainable," credited her expressions of regret over her negative communications with Father, and found her promises to abide by future court orders "credible." Appellant's App. p. 21. The trial court also noted that, in reviewing the text messages exchanged between the parties, "[e]ach side can with equal force pick out messages in support of their own testimony and in opposition to the other's." Id. Finally, the trial court observed that "[f]rom the evidence presented during the hearing, it became clear [Father] was not completely forthcoming in his testimony to the court during the final hearing on the petition for dissolution." Id. at 21 n.1.

The trial court had the opportunity to interact with the parties in person and we may not second-guess its credibility determinations. While I may have reached a different conclusion had I been the trial judge, that is not the lens through which we must view the decision as an appellate tribunal. I believe that our standard of review compels us to affirm in this case because sufficient evidence and inferences support the trial court's order, and respectfully dissent from the majority decision as a result.