modification hearing in Indiana

1998Since Shuamber , this court has stated that the modified impact rule “maintains the requirement that [the plaintiff] demonstrate that she suffered a direct physical impact.” Etienne v. Caputi, 679 N.E.2d 922, 926 (Ind.Ct.App.1997)(quoting Gorman v. I & M Electric Co., Inc., 641 N.E.2d 1288, 1290 (Ind.Ct.App.1994), trans. denied); see Miller v. May, 656 N.E.2d 1198, 1200 (Ind.Ct.App.1995), trans. denied.

1998Id.

2026In affirming the trial court, the panel stressed although a modification petition “is not a vehicle to relitigate the initial custody determination[,]” information regarding a child’s current circumstances previously unknown to the court is not “relitigation . . . especially when custody was stipulated to by the parties in a summary dissolution proceeding[.]” Id. at 249 ; see also Bettencourt v. Ford, 822 N.E.2d 989 , 999 n.4 (Ind. Ct. App. 2005) (declining to reverse trial court’s modification order when, even without the challenged testimony, the evidence showed a “substantial change in one

2025See In re Paternity of J.J., 911 N.E.2d 725, 731 (Ind. Ct. App. 2009); Wolljung v. Sidell, 891 N.E.2d 1109, 1113 (Ind. Ct. App. 2008). [36] Mother specifically claims the dissolution court failed to take into account: (1) the hardship and expense involved for Father to exercise parenting time with Child (Parenting Time Factor); (2) the feasibility of preserving Father and Child’s relationship through suitable parenting time (Relationship Factor); and Court of Appeals of Indiana | Opinion 24A-DR-726 | July 1, 2025 Page 15 of 23 (3) Mother’s established patterns of conduct to facilitate or thwar

2025See In re Paternity of J.J., 911 N.E.2d 725, 731 (Ind. Ct. App. 2009); Wolljung v. Sidell, 891 N.E.2d 1109, 1113 (Ind. Ct. App. 2008). [36] Mother specifically claims the dissolution court failed to take into account: (1) the hardship and expense involved for Father to exercise parenting time with Child (Parenting Time Factor); (2) the feasibility of preserving Father and Child’s relationship through suitable parenting time (Relationship Factor); and Court of Appeals of Indiana | Opinion 24A-DR-726 | July 1, 2025 Page 15 of 23 (3) Mother’s established patterns of conduct to facilitate or thwar

2020Although that may be a universal truth, the context in which that language appears is that “[i]n subsequent hearings to modify custody, the burden is on the petitioner to demonstrate that the existing custody order is unreasonable because permanence and stability are considered best for the welfare and happiness of the child.” Fields, 749 N.E.2d 100, 108 (Ind. Ct. App. 2001) (emphasis added), trans. denied.

2020“Under the Grandparent Visitation Act, the amount of visitation is left to the sound discretion of the trial court.” In re Visitation of L-A.D.W., 38 N.E.3d 993, 997 (Ind. 2015) (internal quotations omitted).

2017It is also distinguishable from Higginbotham v. Higginbotham, 822 N.E.2d 609, 612 (Ind. Ct. App. 2004), where, in rejecting the father’s claim that the issue of legal custody was not before the trial court, this court determined Court of Appeals of Indiana | Memorandum Decision 29A05-1706-DR-1213 | September 27, 2017 Page 20 of 24 asked whether she was seeking modification of legal custody and her responses indicated that she was seeking a reduction in Father’s parenting time and a modification from the then-existing 2/2/5/5 shared physical custody arrangement.

2015Thacker v. Wentzel, 797 N.E.2d 342, 346-47 (Ind. Ct. App. 2003) (citations omitted). “[W]hen reviewing the question of whether attorney fees should be imposed as a sanction for failure to follow the rules of appellate procedure, we can cut the [pro se litigants] no slack simply because they have no formal legal training.” Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind. Ct. App. 1990). [13] Pyatte argues that Middleton’s appeal is frivolous, filed in bad faith, and was pursued to further delay the trial court’s modification hearing, which has now been delayed nearly sixteen months.

2015Thacker v. Wentzel, 797 N.E.2d 342, 346-47 (Ind. Ct. App. 2003) (citations omitted). “[W]hen reviewing the question of whether attorney fees should be imposed as a sanction for failure to follow the rules of appellate procedure, we can cut the [pro se litigants] no slack simply because they have no formal legal training.” Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind. Ct. App. 1990). [13] Pyatte argues that Middleton’s appeal is frivolous, filed in bad faith, and was pursued to further delay the trial court’s modification hearing, which has now been delayed nearly sixteen months.

2014See Meneou v. Meneou, 503 N.E.2d 902, 904-05 (Ind.Ct.App.1987).

2014See Meneou v. Meneou, 503 N.E.2d 902, 904-05 (Ind. Ct. App. 1987).

2014See Meehan, 425 N.E.2d at 160 .

2014“Accordingly, we review the special findings and conclusions as if they were issued sua sponte by the trial court.” Leever v. Leever, 919 N.E.2d 118, 122 (Ind. Ct. App. 2009).

2014Even though there is no statutory prohibition against the admission of pre-Decree evidence in a visitation modification proceeding, “[i]t is a well settled rule of law that the modification hearing cannot be used to retry the issues settled by the divorce decree.” Dufour v. Dufour, 149 Ind. App. 404, 407 , 273 N.E.2d 102, 104 (1971).

2014Even though there is no statutory prohibition against the admission of pre-Decree evidence in a visitation modification proceeding, “[i]t is a well settled rule of law that the modification hearing cannot be used to retry the issues settled by the divorce decree.” Dufour v. Dufour, 149 Ind. App. 404, 407 , 273 N.E.2d 102, 104 (1971).

2013Some construe anti-waiver clauses strictly according to their terms, “thus conclusively precluding a creditor’s pattern of accepting late payments from operating as a modification or waiver of the contract’s default provisions.” Id. at 907 (quoting Westinghouse Credit Corp. v. Shelton, 645 F.2d 869, 873-74 (10th Cir. 1981)).

2013Others have held that an anti-waiver clause “is itself subject to estoppel given the correct set of facts and that whether the correct set of facts is present is a question for the trier of fact to 12 decide.” Id.

2013See In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012) (stating 11 that judicial notice of documents filed in a Child in Need of Services (CHINS) action was proper in a later Termination of Parental Rights (TPR) case); see also In re Paternity of P.R., 940 N.E.2d 346, 350 (Ind. Ct. App. 2010) (stating that it was not error for a trial court to take judicial notice of facts in a protective order case file when deciding a custody modification petition even after the modification hearing concluded and neither party had requested that the trial court take judicial notice).

2013See In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012) (stating 11 that judicial notice of documents filed in a Child in Need of Services (CHINS) action was proper in a later Termination of Parental Rights (TPR) case); see also In re Paternity of P.R., 940 N.E.2d 346, 350 (Ind. Ct. App. 2010) (stating that it was not error for a trial court to take judicial notice of facts in a protective order case file when deciding a custody modification petition even after the modification hearing concluded and neither party had requested that the trial court take judicial notice).