FOR PUBLICATION Aug 07 2014, 10:05 am
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DONNA JAMESON JONATHAN R. DEENIK
Greenwood, Indiana Cross Pennamped Woolsey & Glazier, P.C.
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RYAN GOLD, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1311-JP-995
)
STARR WEATHER, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable Louis Rosenberg, Judge
The Honorable Marie Kern, Master Commissioner
Cause No. 49C01-0902-JP-5700
August 7, 2014
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Petitioner, Ryan A. Gold (Father), appeals the trial court’s Order
approving the relocation request of Appellee-Respondent, Starr C. Weather (Mother), and
denying his motion to modify custody.
We affirm.
ISSUES
Father raises two issues on appeal, which we restate as follows:
(1) Whether the trial court erred by finding that Mother’s relocation was made in
good faith and for a legitimate purpose; and
(2) Whether the trial court erred by denying his motion to modify custody.
FACTS AND PROCEDURAL HISTORY
Father and Mother have one child together, a daughter, M.G. (the Child), born on
August 7, 2008. Father works part-time and is a full-time student; he expects to receive
his degree in occupational therapy by the end of 2014. Father lives in Indianapolis, Indiana,
with his wife, W.G., a registered nurse. Father and W.G. have an eight-year-old daughter
and a two-year-old son together. Mother is a registered nurse and, prior to July of 2011,
lived in Terre Haute, Indiana, where her mother (Child’s Grandmother), fifteen-year-old
sister (Child’s Aunt), and ten-year-old brother (Child’s Uncle) also lived.
At some point after the Child’s birth, the relationship between Father and Mother
began deteriorating and eventually reached a very acrimonious state. The Child was nearly
eight months old before Father’s paternity was established by a paternity affidavit on
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March 30, 2009. Mother was the Child’s sole legal and physical custodian, and on
September 9, 2009, Father filed a petition to establish custody, parenting time, and child
support. On March 1, 2010, Mother filed a petition seeking an order for protection against
Father’s wife, W.G., which the trial court denied.
On March 19, 2010, the trial court approved the parties’ preliminary agreement,
under which Mother retained physical custody, and Father received parenting time. The
parties agreed, in part, that only Father and Mother—no third parties—would transport the
Child for parenting time exchanges. With Father living in Indianapolis and Mother in Terre
Haute, the parties met in Greencastle, Indiana, to exchange the Child. Less than two weeks
after implementation of the preliminary agreement, Father filed a contempt motion against
Mother. A hearing was set for July, but on April 27, 2010, Father filed a subsequent
verified emergency motion for rule to show cause. At a hearing on May 7, 2010, the trial
court declined to find Mother in contempt, instead ordering that all non-emergency
communication between Father and Mother must occur through email and that Father is
entitled to eight full hours for his parenting time.
On September 16, 2010, per the parties’ agreement, the trial court issued an order
recognizing Father as the Child’s biological father. The trial court awarded primary
custody to Mother. Father received parenting time in accordance with the Indiana
Parenting Time Guidelines and was ordered to pay $63.00 per week in child support.
On December 3, 2010, Mother filed for another protective order—this time, against
Father. She alleged that Father had abused and raped her and that he was an endangerment
to the Child. The trial court denied Mother’s petition, citing a lack of evidence to merit an
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ex parte protective order. Although the trial court extended Mother an opportunity to
present additional evidence, Mother did not pursue the matter.
On Christmas Day of 2010, Father picked the Child up in Greencastle at 2:00 PM
for his scheduled holiday parenting time, and the Child spent the remainder of the day
celebrating with Father’s extended family in Indianapolis. The parties had planned to meet
in Greencastle later that evening to re-exchange the Child, but for an indeterminate reason,
the exchange did not occur. Father and Mother provided drastically different versions of
the events that night, which the trial court ultimately reconciled to find that “a third party
was involved in the parenting time exchange and there were issues with both parties being
at the same spot, at the same time. Father did not drive to Terre Haute to return the [C]hild
and Mother called the police, alleging Father kidnapped the [C]hild.” (Appellant’s App.
p. 24). Indianapolis police officers retrieved the Child from Father’s home that night and
turned her over to Mother.
Following the mayhem of the Christmas Day exchange, Mother denied Father
access to the Child. Father sent numerous email messages to Mother and drove to the
Greencastle exchange point on his scheduled days, but his efforts to see the Child were
unsuccessful. On January 30, 2011, Mother finally communicated to Father that she was
restricting his parenting time as a result of his “actions” on Christmas Day. (Appellant’s
Exh. 1, p. 11). In her email, Mother further exclaimed,
You not only caused our [C]hild confusion[,] you also failed to do what was
in the best interest of her. . . . You do not pay child support nor have you in
the past [six] months. I could have been fired for your actions. All you had
to do is make a simple phone call. What you did was considered kidnapping!
and not to be taken lightly.
4
(Appellant’s Exh. 1, p. 11). For the next five months, Mother withheld parenting time, and
Father continued to protest her denial of his parental rights via email. At one point, Mother
informed Father that they needed to make an appointment with a court mediator before she
would allow parenting time, stating “I am afraid to be in ur (sic) presence as well as if my
[C]hild will return home when leaving with you.” (Appellant’s Exh. 1, p. 12). On May
12, 2011, Father filed a verified motion for contempt.
On May 23, 2011, Mother sent an email to Father that stated, “I am sending this
email to inform you of our ([the Child] and myself) intent to relocate to Atlanta[,]
[Georgia], in July 2011.” (Appellant’s App. p. 41). Less than an hour later, Father replied
to inform Mother that her email message was insufficient notice “[a]ccording to the [S]tate
guidelines.” (Appellant’s App. p. 42). On June 8, 2011, having received no response from
Mother, Father sent another email, stating that he did “not agree with [his] [C]hild being
taken to another state where she has no family or familiar faces.” (Appellant’s App. p. 43).
Mother finally responded later that day and provided additional details about the relocation.
She explained that “[the Child] and mine (sic) immediate family are relocating to [the
Atlanta] area. This is our support system; these people are apart (sic) of ou[r] every day
(sic) life. They come to [the Child’s] events and are there when she is sick and provide
lots of support for her and myself.” (Appellee’s Exh. B). Mother additionally discussed
Father’s alleged domestic abuse, her concerns for the safety of the Child and herself, and
Father’s “inability . . . to return [the Child] after visits” as “[s]ome of the issues leading to
this point.” (Appellee’s Exh. B).
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On June 17, 2011, Mother filed her official notice with the trial court, declaring her
intent to relocate to Stockbridge, Georgia, as of July 1, 2011, because
of our family relocation and job relocation. My mother as well as my siblings
provide a very important role in [the Child’s] life. They help with all of [the
Child’s] every day (sic) things. The[y] provide babysitting, daily mildstone
(sic) support, extra transportation, and support to extracurricular activities
when I have to work. Without our family in our daily lives things would be
very hard for [the Child] as well as myself.
(Appellant’s App. pp. 39-40). On June 29, 2011, Father filed a Verified Emergency Motion
for Rule to Show Cause and Objection to Notice of Intent to Relocate Residence, arguing
that Mother had failed to comply with the notice requirements of the relocation statute; that
Mother had denied his parenting time; and that the relocation would inhibit his ability to
exercise parenting time. Without waiting for the court’s permission, Mother relocated to
Stockbridge at the beginning of July. Initially, they lived with a relative, but after a few
months, Mother and the Child relocated to Dallas, Georgia, to live in a five-bedroom house
with the Child’s Grandmother, Aunt, and Uncle. After moving, Mother secured a higher-
paying nursing job than she had in Terre Haute.
In response to Father’s objection to the relocation, the trial court ordered Mother to
appear on July 7, 2011, to “show cause why she should not be attached and punished for
contempt.” (Appellant’s App. p. 47). On July 1, 2011, Mother sought a continuance,
claiming that she had
just relocated to Stockbridge GA in the past two days. Three business days
is not sufficient time for me to make plans to attend court on July 7th 2011. I
notified [Father] on May 23rd, 2011 by email. I assumed action would be
taken way before the date of my relocation. I notified the court on June 17th
2011 as I was not aware that I had to notify both. This seems unreasonable
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as well as unjust for me to only have a three business day notice of a court
date when I am in a different state.
(Appellant’s App. p. 49). Based on Mother’s non-compliance with the relocation statute’s
notice requirements, the trial court declined to continue the hearing. Mother appeared in
court as ordered, but the hearing was reset in order to allow the parties an opportunity to
negotiate a resolution. No agreement was reached.
Subsequent to Mother’s relocation, Father did not have any parenting time or
otherwise communicate with the Child. By December of 2011, Father had not had any
parenting time for nearly a year. Upon Father’s expedited motion for a hearing, the trial
court conferred with the parties and issued an order specifying Father’s holiday parenting
time. On December 28, 2011, Father filed a motion to modify the Child’s legal and
physical custody. Because Father and Mother remained unable to cooperate in order to
formulate a more workable post-relocation parenting time plan, the trial court had to
convene the parties on two additional occasions in order to designate Father’s spring break
and summer parenting time schedules.
On August 8, 2012, one day after the Child’s fourth birthday and more than a year
after Mother moved to Georgia, the trial court conducted a hearing on Father’s objection
to the relocation, accepting evidence solely on the issue of whether Mother’s relocation
was made in good faith and for a legitimate reason. On October 15, 2012, the trial court
issued specific findings and conclusions thereon and determined that Mother had satisfied
her burden to prove that the relocation was proposed in good faith and for a legitimate
purpose. On October 19, 2012, Father filed a motion for certification of an interlocutory
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appeal. The trial court denied Father’s motion the same day, reasoning that “[n]o material
question of law has been presented.” (Appellant’s App. p. 89).
Just before the Child’s fifth birthday, on July 30, 2013, the trial court conducted a
hearing on the remaining relocation issues, including the Child’s best interests and
modification of custody. On October 28, 2013, the trial court issued its final Order. In a
new set of factual findings and conclusions, the trial court determined that Father had failed
to establish that the relocation would be contrary to the Child’s best interests and denied
both Father’s objection to the relocation and his motion to modify physical custody.
However, the trial court modified the Child’s legal custody to be shared jointly. In addition,
as a contempt sanction for Mother’s obstruction of Father’s parenting time, the trial court
ordered that Mother pay $2,000 of his attorney fees.
Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Where the trial court has entered special findings of fact and conclusions thereon,
our court will “not set aside the findings or judgment unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A). Under our well-established, two-tiered standard of
review, we must determine whether the evidence supports the findings and whether those
findings support the judgment. In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App.
2012), trans. denied. We consider the evidence most favorable to the trial court’s
judgment, and we do not reweigh evidence or reassess the credibility of witnesses. D.C. v.
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J.A.C., 977 N.E.2d 951, 954 (Ind. 2012). We will find clear error only if “the record does
not offer facts or inferences to support the trial court’s findings or conclusions of law.”
Rogers v. Rogers, 876 N.E.2d 1121, 1126 (Ind. Ct. App. 2007), trans. denied.
In this case, Mother requested that the trial court make specific findings and
conclusions regarding the issue of whether her relocation was in good faith and for a
legitimate purpose. When a party requests special findings and conclusions thereon, “we
may affirm the judgment on any legal theory supported by the findings.” Werner v.
Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011). However, because Mother withdrew
her request for special findings regarding the Child’s best interests and modification of
custody and because Father did not file his own request, the trial court’s second set of
findings and conclusions was entered sua sponte. See T.R. 52(A), (D). Sua sponte
“findings control only as to the issues they cover, while a general judgment standard applies
to any issue upon which the trial court has not found, and we may affirm a general judgment
on any theory supported by the evidence adduced at trial.” Miller v. Carpenter, 965 N.E.2d
104, 108-09 (Ind. Ct. App. 2012).
In conjunction with the Trial Rule 52 standard, there is a longstanding policy in our
State that appellate courts should defer to the determinations of trial courts in family law
matters. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). We accord this deference because
trial courts directly interact with the parties and are thus in a superior position “to assess
credibility and character through both factual testimony and intuitive discernment.” Id.
Conversely, “appellate courts ‘are in a poor position to look at a cold transcript of the
record[] and conclude that the trial judge, who saw the witnesses, observed their demeanor,
9
and scrutinized their testimony as it came from the witness stand, did not properly
understand the significance of the evidence.’” D.C., 977 N.E.2d at 956-57 (quoting Kirk
v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)).
II. Relocation
A. Good Faith, Legitimate Reason
Father claims that the trial court erred by finding that Mother demonstrated a good
faith, legitimate reason for relocating to Georgia. Under Indiana’s relocation statute, there
are two ways for a non-custodial parent to object after receiving notice that the custodial
parent intends to relocate: by filing a motion to prevent the relocation or by filing a motion
to modify custody. T.L. v. J.L., 950 N.E.2d 779, 784 (Ind. Ct. App. 2011), reh’g denied.
See Ind. Code §§ 31-17-2.2-1, -5. Following a motion to prevent relocation, the relocating
parent must prove “that the proposed relocation is made in good faith and for a legitimate
reason.” I.C. § 31-17-2.2-5(c). If the court finds a good faith, legitimate purpose for the
relocation, the burden then shifts to the non-relocating parent to demonstrate “that the
proposed relocation is not in the best interest of the child.” I.C. § 31-17-2.2-5(d). If the
non-relocating party fails to object, the custodial parent is permitted to relocate with the
Child. I.C. § 31-17-2.2-5(e).
Because there is no explicit criteria for determining whether a relocation is in good
faith and for a legitimate reason, our court has generally required that the moving parent
demonstrate an objective basis—that is, “more than a mere pretext”—for relocating. T.L.,
950 N.E.2d at 787. It is commonly understood in today’s society that individuals move in
order to live closer to family members, for financial reasons, and for employment
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opportunities. Id. at 788. As such, “[w]e infer that these and similar reasons . . . are what
the legislature intended in requiring that relocation be for ‘legitimate’ and ‘good faith’
reasons.” Id.
In the present case, the trial court determined that “Mother’s relocation was done in
good faith and for a legitimate purpose” because she “relocated to be with her family, an
important and on-going support structure for her and the [C]hild. Mother also moved for
financial reasons, including the ability to live with [the Child’s Grandmother] and take a
job earning more income than she had previously earned.” (Appellant’s App. pp. 17-18).
Additionally, the trial court found that, prior to relocating, Mother’s
extended family, including the [Child’s Grandmother], played an important
and on-going role in the [C]hild’s life. Mother’s extended family would
assist in the [C]hild’s care, provided financial support to Mother, and had
contact with the [C]hild [one to two] times per week. Mother’s extended
family has a close and bonded relationship with the [C]hild, and has since
her birth.
(Appellant’s App. pp. 16-17).
Father now contends that Mother’s inadequate notice and efforts to inhibit his
relationship with the Child evince her spurious motives for relocating. We agree with
Father that the evidence clearly demonstrates that Mother moved without waiting for court
approval and without providing the requisite ninety-day notice, and that Mother prevented
Father’s parenting time from December of 2010 through December of 2011. While the
trial court may consider noncompliance with the notice provision and obstruction of
parenting time as indicative of a parent’s insidious intent, we find that these facts, of
themselves, are not dispositive of the issue of a good faith, legitimate reason for relocating.
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First, the relocation statute provides a distinct remedy for a parent’s failure to provide the
proper notice: the trial court may grant a temporary restraining order to prohibit the
relocation or order that the child be returned to the non-relocating parent. I.C. § 31-17-2.2-
6(a). Here, the trial court noted that Mother “moved without appropriate notice and
opportunity for [Father] to be accorded a hearing”; yet Father did not request—and the trial
court did not independently order—that Mother be compelled to return the Child to Indiana
pending the final hearing. (Appellant’s App. p. 71). Second, Indiana Code section 31-17-
4-3 authorizes the trial court to award attorney and other fees upon a finding that the
custodial parent violated a parenting time order. Here, the trial court elected to sanction
Mother for interfering with Father’s parenting time by ordering her to pay $2,000 of his
attorney fees.
Father also argues that Mother used her family’s relocation as “a smoke screen for
her real reason[] behind the relocation, which was to deny [Father] parenting time with [the
Child].” (Appellant’s Br. p. 17). In particular, Father challenges the extent to which
Mother actually relied on her family for help with the Child and also points out that Mother
did not have employment in Georgia until after she moved. He also maintains that
Mother’s “real reasons for relocating”—including Father’s alleged abuse and
kidnapping—do not constitute legitimate and good faith bases. (Appellant’s Br. p. 18).
As our court has recognized, if “the requirement of a legitimate and good faith
reason[] posed an inordinately high bar for a relocating parent to meet, it could too often
prevent trial courts from . . . appropriately deciding the dispute based on the best interests
of the affected child.” T.L., 950 N.E.2d at 788. Even so, we recognize that it would render
12
the relocating parent’s burden of proof meaningless if we were to accept as legitimate “any
stated reason that is not an outright admission that the parent is relocating to interfere with
the other parent’s rights.” Gilbert v. Gilbert, 7 N.E.3d 316, 326 (Ind. Ct. App. 2014),
(Robb, J., dissenting). In the case at hand, a review of the record reveals that Mother was
raising the Child in Terre Haute while Father lived in Indianapolis. As a single parent, she
relied upon the emotional—and occasionally financial—support of her family, primarily
the Child’s Grandmother. Mother testified that the Child is very “attached” to the Child’s
Grandmother and has a sibling-like relationship with the Child’s Aunt and Uncle, all of
who have been very involved in the Child’s life. When the Child gets sick or has a school
function or extracurricular activity that interferes with Mother’s work schedule, it is the
Child’s Grandmother who cares for the Child or attends the event. Mother further testified
that shortly after the Child’s Grandmother decided to relocate to Georgia for personal
reasons and employment, Mother also decided to move because they “wanted to be
together.” (Transcript p. 32). Mother has extended family in both the Atlanta and
Indianapolis areas, but she stated that she would have been left with no other family in
Terre Haute after the Child’s Grandmother, Aunt, and Uncle moved to Georgia.
Therefore, notwithstanding any evidence indicating that Mother’s relocation was in
bad faith and for the purpose of distancing the Child from Father, the record supports the
finding that Mother legitimately desired to be near her family. It was the prerogative of
the trial court to accord more weight to the evidence favoring Mother, and it is not the role
of this court to reweigh evidence or assess witness credibility. In re Paternity of X.A.S.,
928 N.E.2d 222, 224 (Ind. Ct. App. 2010), trans. denied. Accordingly, we find there is
13
sufficient evidence to support the trial court’s finding that Mother relocated in order to be
close to her immediate and extended family, which is a legitimate purpose.1
B. Modification of Custody
Father also claims that the trial court erred by denying his motion to modify the
Child’s physical custody. In general, a court must find that modification would be in the
child’s best interests and that there has been a substantial change in circumstances. I.C. §
31-17-2-21. However, where a motion for custody modification is filed in response to a
relocation, the trial court must instead take the following factors into account in deciding
whether to modify custody:
(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating individual
to exercise parenting time . . . .
(3) The feasibility of preserving the relationship between the
nonrelocating individual and the child through suitable parenting time
. . . arrangements, including consideration of the financial
circumstances of the parties.
(4) Whether there is an established pattern of conduct by the relocating
individual, including actions by the individual to either promote or
thwart a nonrelocating individual’s contact with the child.
(5) The reasons provided by the:
(A) relocating individual for seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the child.
(6) Other factors affecting the best interest of the child.
1
Based on the trial court’s determination that Mother offered a good faith, legitimate reason for relocating,
the burden shifted to Father to prove that Mother’s relocation would not be in the Child’s best interests.
Rather than challenging the trial court’s finding that he failed to satisfy his burden of proof for his motion
to prevent the relocation, Father proceeds directly to the trial court’s denial of his motion to modify custody.
See I.C. § 31-17-2.2-5. Regardless of whether the parent objects by filing a motion to prevent the relocation
or a motion to modify custody, “if the relocation is in good faith ‘both analyses ultimately turn on the best
interests of the child.’” In re Paternity of Ba.S., 911 N.E.2d 1252, 1254 (Ind. Ct. App. 2009) (quoting
Baxendale v. Raich, 878 N.E.2d 1252, 1256 n.5 (Ind. 2008)). See I.C. § 31-17-2.2-1(b).
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I.C. § 31-17-2.2-1(b). See Baxendale v. Raich, 878 N.E.2d 1252, 1256-57 (Ind. 2008).
The “[o]ther factors” to be considered are enumerated in Indiana Code section 31-17-2-8
for ascertaining a child’s best interests:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s
wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best
interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian . . . .
In this case, the trial court modified the legal custody of the Child to be jointly shared by
the parties; thus, Father asserts that the trial court’s findings are insufficient to support its
conclusion that Mother should retain physical custody. We disagree.
In its final Order, the trial court made numerous findings addressing its
consideration of the factors enumerated in the relocation statute. See I.C. § 31-17-2.2-1(b).
Specifically, the trial court found that the distance between Indiana and Georgia is
approximately 600 miles and an eight-hour drive each way. Although the parties meet at
a midpoint in Tennessee, Father must stop for gas twice, which the trial court
acknowledged “creates a hardship on Father due to the cost.” (Appellant’s App. p. 23).
Father earns $200 per week from his part-time employment and is dependent upon W.G.’s
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income to support their family, whereas Mother earns an annual salary of $65,000. On
appeal, Father posits that the trial court “failed to address [this factor] past [the] finding”
that he would suffer a hardship. (Appellant’s Br. p. 20). Our court has previously held
that the trial court must evaluate each statutory factor in deciding whether to modify
custody, but the amount of consideration to accord each factor is left to the trial court’s
discretion. See Wolljung v. Sidell, 891 N.E.2d 1109, 1113 (Ind. Ct. App. 2008). Here, we
find it clear that the trial court considered Father’s hardship.
The trial court also discussed the Child’s involvement in various extracurricular
activities in Georgia and found that “Father is unable to participate in these activities
because of the distance involved.” (Appellant’s App. p. 24). However, the trial court
surmised that even though “the distance involved makes parenting time a challenge,” it
“does not make it impossible for Father to continue to have a bonded relationship with the
minor [C]hild, especially in this day and age of modern technology.” (Appellant’s App. p.
27). To this end, the trial court ordered that “the parties shall make any necessary
accommodations to allow Father to engage in online communication with the [C]hild.”
(Appellant’s App. p. 29). Father now contends that “[w]hile modern technology has it[s]
advantages, it is not a feasible way for a parent to maintain a meaningful relationship with
a child.” (Appellant’s Br. p. 21). Again, we disagree. The trial court’s parenting time
order actually affords Father more time than stipulated in the Indiana Parenting Time
Guidelines for long-distance cases. See Dixon v. Dixon, 982 N.E.2d 24, 27-28 (Ind. Ct.
App. 2013). Furthermore, it is clear that the trial court intended for the online
communication to supplement the parent-child relationship during Father’s parenting time
16
gaps. Accordingly, we find that the trial court’s findings sufficiently address the issue of
preserving the parent-child relationship.
Father also contends that the trial court’s refusal to modify custody is unsupported
by its ample findings that Mother thwarted Father’s relationship with the Child. In addition
to withholding Father’s parenting time for nearly one year, Mother did not provide a
parenting time schedule for Father when she relocated; she withheld parenting time based
on Father’s delinquent child support payments as well as her “exaggerated” claims about
Father’s kidnapping and physical abuse; she did not apprise Father of the Child’s
enrollment in extracurricular activities; she refused to provide Father with the Child’s
school schedule and records, or even the name of the school, and would not authorize the
school to release any information to Father; and she refused to disclose medical information
and doctor’s appointments to Father, even concealing that the Child underwent surgery
before leaving Terre Haute. (Appellant’s App. p. 27). From these findings, it is obvious
that the trial court considered this factor. Therefore, whatever weight the trial court elected
to accord Mother’s efforts to undermine Father’s relationship with the Child in light of the
totality of the evidence is a matter with which our court will not interfere. See D.C., 977
N.E.2d at 957.
As already discussed in detail, the trial court found Mother’s desire to be close to
her family was a legitimate purpose for relocating. Turning to Father’s rationale for
opposing the relocation, the trial court noted in its findings that “Father does not believe
that Mother will encourage a relationship between Father and the [C]hild, as she has said
in the past that she does not think [he] is a fit parent.” (Appellant’s App. p. 23). Father
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testified that Mother “has never shown consistency with allowing [him] to be in [the
Child’s] life even when she was in . . . Indiana . . . [s]o, now that she is in Georgia, it hasn’t
gotten any better.” (Tr. p. 70). Based on the evidence of Mother’s efforts to undermine
Father’s relationship with the Child and the distance, Father’s concern is reasonable, and
the trial court’s finding reflects its contemplation of this factor.
Regarding the Child’s best interests, the trial court found that “Mother has been the
primary caregiver for the [C]hild and the [C]hild has a close bond with the [Child’s
Grandmother, Aunt, and Uncle], who all reside within the home and with whom the [Child]
was bonded, prior to the relocation.” (Appellant’s App. p. 27). See In re Paternity of
X.A.S., 928 N.E.2d at 224 (noting the upheaval it would cause if the twelve-year-old child
was removed from his custodial parent of nine years). As Mother testified during the
hearing, she and the Child live in a five-bedroom house with the Child’s Grandmother,
Aunt, Uncle, and the family’s dog. The Child’s Uncle is close in age to the Child, and the
Child has a sibling-like relationship with both her Aunt and Uncle. The Child’s
Grandmother coordinates with Mother to transport the Child to school and other activities.
On weekdays, Mother works from home and is out in the field for four to six hours on the
weekends; thus, while after-school care is occasionally necessary when Mother has extra
work, she generally spends her days with the Child, and the Child’s Grandmother or Aunt
are there to provide childcare on the weekends. On the other hand, Father attends school
during the morning, is home for a few hours, and then works all evening; he does not work
on weekends, which is when he spends time with his children.
18
By the time of the final hearing, the five-year-old-Child had lived in Georgia for
two years, she had completed preschool and was registered to begin kindergarten at a
school in Mother’s neighborhood. Mother and the Child attend church together, and the
Child has participated in ballet, tap dance, karate, tennis, and a beauty pageant since
moving to Georgia. Father testified that, if granted custody, the Child would attend
kindergarten in Indianapolis at the same school as her older half-sister.
The trial court found that the Child has extended family nearby in Georgia, as well
as a significant amount of family in Indianapolis, including relatives of both Father and
Mother. While Mother testified that the Child has a relationship with her maternal
grandfather, she is not close to the other Indianapolis family members on Mother’s side.
Mother testified that the Child is safe and secure in her care and has become familiar with
her surroundings and maintains that it is in the Child’s best interests to remain in her
custody as “the [C]hild will continue to have important and meaningful relationships with
her extended family, who have had an active role in her life.” (Appellee’s Br. p. 13).
Similarly Father testified that the Child “knew who all our relatives were on my side of the
family, and they all . . . , when I did get her, everyone would come over, and spend time
with her.” (Tr. p. 90). Although Father submitted evidence of his unsuccessful efforts to
spend time with the Child following Mother’s termination of his parenting time in
December of 2011, he did not present any evidence of his relationship with the Child or
the Child’s relationship with W.G. and his other two children.
Because the trial court’s findings indicate that it considered each statutory factor,
albeit not to the extent that Father may have preferred, we cannot say that the trial court’s
19
decision is clearly erroneous. It was well within the discretion of the trial court to place
more weight on the evidence that favors Mother as the physical custodian based on the
Child’s best interests rather than the evidence favoring Father based on Mother’s efforts to
thwart his relationship with the Child. See D.C., 977 N.E.2d at 957.2
CONCLUSION
Based on the foregoing, we conclude that the trial court neither erred in its
determination that Mother had a good faith, legitimate reason for relocating, nor in its
denial of Father’s motion to modify the Child’s physical custody.
Affirmed.
BRADFORD, J. concurs
ROBB, J. concurs in result with separate opinion
2
Although not an issue raised by either party, we must note our discomfort over the trial court’s decision
to modify the custody order by ordering that Father and Mother share joint legal custody. All of the
evidence and all of the trial court’s findings make it abundantly clear that the parties are unable and
unwilling “to communicate and cooperate in advancing the [C]hild’s welfare.” I.C. § 31-17-2-15.
Furthermore, the trial court’s award is essentially meaningless as Mother is authorized to override any of
Father’s opinions regarding medical, educational, and religious decisions if she disagrees.
20
IN THE
COURT OF APPEALS OF INDIANA
RYAN GOLD, )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1311-JP-995
)
STARR WEATHER, )
)
Appellee-Petitioner. )
ROBB, Judge, concurring in result
I concur in the result reached by the majority, but write separately to comment on a
troubling aspect of the specific proceedings here and relocation cases in general.
Pursuant to the relocation statutes, Mother was required to provide notice of her
intent to move ninety days prior to the date she intended to relocate. Ind. Code § 31-17-
2.2-3(a)(1)(B). Mother did not file her notice at least ninety days prior to her intended
relocation; in fact, she filed the notice on June 17, 2011, stating that she intended to move
on July 1, 2011. Upon receiving that notice, Father had sixty days within which to object
21
and seek an order preventing relocation. Ind. Code § 31-17-2.2-5(a). Father filed his
objection on June 29, 2011, and the trial court set a hearing for July 7, 2011. At the
evidentiary hearing regarding relocation, Mother was to have the burden of proof “that the
proposed relocation is made in good faith and for a legitimate reason,” Ind. Code § 31-17-
2.2-5(c), and if she met that burden, Father would then have the burden “to show that the
proposed relocation is not in the best interest of the child,” Ind. Code § 31-17-2.2-5)(d).
Based on the averments in Mother’s July 1, 2011, motion to continue the hearing,
see slip op. at 6-7 (quoting Appellant’s Appendix at 49 where Mother states she had
relocated “in the past two days”), she had moved to Georgia even before July 1 and
certainly before a hearing was held regarding her “intent” to relocate. In denying Mother’s
motion to continue the hearing, the trial court specifically noted that she had failed to
comply with the relocation statute’s notice provisions. Nonetheless, a hearing was not held
on that day to allow the parties an opportunity to reach an agreement, though they were
unable to do so. For a variety of reasons, including multiple motions to continue filed by
both Mother and Father, a hearing was not held on the relocation until August of 2012. In
the interim, several emergency motions regarding holiday and summer visitation were
heard by the court, including a hearing on June 28, 2012, at which the court specifically
noted:
It is clear to the Court that the fact [Mother] lives in Georgia with the child
of this relationship is the obstacle to regular parenting time. [Mother] moved
without appropriate notice and opportunity for [Father] to be accorded a
hearing to address visitation issues in advance.
22
Appellant’s Appendix at 71.
The trial court finally heard evidence regarding the first prong of relocation on
August 8, 2012, and issued an order on October 15, 2012, finding that Mother had met her
burden of proving a good faith and legitimate purpose for her move and confirming a
hearing on the second prong for October 17, 2012. Again, due to multiple motions to
continue (most if not all filed by Father), the best interests hearing was postponed for nearly
a year, finally being held on July 30, 2013, at which time Mother and Child had been living
in Georgia for over two years. The trial court references this fact in its October 28, 2013,
order and in part relies on the Child’s situation in Georgia in finding that Father has not
met his burden of establishing relocation is not in her best interests—noting that Mother
has been the primary caregiver, that the Child has a close bond with her maternal
grandmother and aunt and uncle with whom she lives, and noting some of the activities
Child participates in in Georgia.
Mother’s primary stated reason for moving was to remain close to her mother and
siblings, who she characterized as playing “a very important role in [Child’s] life. . . . They
provide babysitting, daily . . . support, extra transportation, and support to extracurricular
activities when I have to work. Without our family in our daily lives things would be very
hard for [Child] as well as myself.” Appellant’s App. at 39-40. In part, Mother was
required to rely on her family because she was denying Father the opportunity to participate
more fully in Child’s life, and one would have hoped that Father would have had (and
taken) the chance to play a similar role in supporting Mother and Child. But as the majority
23
states, it seems clear that Mother legitimately wanted to be near her immediate family and
she and Child benefit from those close relationships. See slip op. at 13. While I believe
we must set the bar for the relocating parent above merely stating a reason for moving, I
also acknowledge that we cannot set the bar too high because the best interest of the child
determination is paramount. See id. at 12-13 (citing Gilbert v. Gilbert, 7 N.E.3d 316, 326
(Ind. Ct. App. 2014) (Robb, J., dissenting)).
However, the fact that Mother may have had a good faith and legitimate reason for
moving does not necessarily mean that she had a pressing reason for moving in advance of
a hearing and court determination in accordance with the relocation statute. It is clear from
the language of the statute that a parent is not to relocate prior to a hearing regarding
whether the relocation is in the child’s best interest. See Ind. Code § 31-17-2.2-5
(referencing the burden of proof at a hearing regarding the “proposed relocation”).
Moreover, this is a long-standing common law rule, as well. Even before our statutes
formally addressed relocation, caselaw held that an order granting a party visitation
privileges impliedly grants the right to exercise those privileges, and the other party “may
not make a unilateral determination that will effectually deny such a party’s rights to
exercise the visitation privileges . . . .” Marshall v. Reeves, 262 Ind. 107, 117, 311 N.E.2d
807, 813 (1974). In order to give effect to the original order, removal of the child from the
jurisdiction “can only be made with prior judicial sanction, either by agreement of the
parties approved by said court, or after due hearing before the court.” Id. (emphasis added).
24
Mother offered no evidence regarding why her move had to be made at a certain
time and certainly no evidence justifying her move not only in advance of a court hearing,
but also well in advance of the timeline provided in the statute. This was not a matter of
Mother or a subsequent spouse being transferred for work purposes. See, e.g., Kietzman
v. Kietzman, 992 N.E.2d 946, 950 (Ind. Ct. App. 2013) (affirming trial court’s grant of
mother’s request to relocate with child and new husband, whose job had offered him an
assignment in China). And even though Mother ultimately found a higher paying job in
Georgia, she did not begin looking for a job until after she had decided to move so that was
not a precipitating factor. See, e.g., Nelson v. Nelson, 10 N.E.3d 1283, 1287 (Ind. Ct. App.
2014) (holding Mother’s intention to move to South Carolina in part to seek employment
when she was unable to find employment in Indiana was a good faith and legitimate reason
for relocation). I believe Mother’s move in violation of the terms of the relocation statute
alone justifies closer scrutiny of her reasons for the move. And Mother’s hasty move
coupled with the court’s reliance—however small—on the time she and the Child have
lived 800 miles away from Father as support for its decision despite acknowledging her
disregard makes a mockery of the statute. If a parent can ignore the requirements of the
law, move the child without court approval, and then claim “primary caregiving” and
“bonding” as a justification for staying with that parent being in the child’s best interest—
and moreover, if the court can acknowledge all of this and yet in effect reward the parent
by approving what they have already done—then the relocation statute has no meaning and
25
no teeth.3 I find it particularly egregious in this case, where it is clear from Mother’s prior
conduct in spuriously denying Father parenting time prior to her move and the court
intervention required to ensure parenting time since, that she will not encourage or facilitate
a relationship between Father and Child especially now that distance is an easy excuse.
Had Father been more aggressive in pursuing his rights and less complicit in the
lengthy delay in this case, this would be a dissent rather than a concur in result. However,
he apparently did not actively protect his relationship with Child even prior to Mother’s
move by pursuing contempt or other sanctions when she denied him parenting time for
nearly a year, he did not seek an emergency temporary order to return Child to Indiana
pending an evidentiary hearing and judicial resolution, and he filed repeated motions to
continue that contributed to the time it took for the court to rule on this matter. Neither
party has comported itself well, and we are left with no good solution in this case.
However, considering all the circumstances but most particularly considering the best
interest of Child at this late date, I concur in the result reached by the majority affirming
the trial court’s orders.
3
I also believe the two year delay from when Mother filed her notice of intent to relocate to when a final
order was issued is unconscionable on the part of both the parties and the court. The parties’ numerous requests for
continuance certainly played a substantial part in the delay, but the court also contributed to it. At the conclusion of
part one of the hearing, the court requested the parties submit proposed findings, and as counsel discussed how soon
they could do so, the court stated, “As far as I’m concerned, there is no real rush because I will probably; it will be a
few several weeks before I get to it, to be perfectly honest.” Transcript at 58. In fact, the court did not issue its
findings for two months, and a second hearing was required thereafter to fully adjudicate the issues before the court.
Although careful consideration is appreciated, some sense of urgency would have been appropriate. Had the court
ultimately found in Father’s favor, the disruption to Child’s life would have been substantial two years down the
road, even if Mother had elected to move back to Indiana in order to avoid a change of custody.
26