MEMORANDUM DECISION
Mar 23 2015, 9:42 am
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.
ATTORNEYS FOR APPELLANT
William S. Frankel
Anthony L. Holton
Wilkinson, Goeller, Modesitt, Wilkinson
& Drummy, LLP
Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of G.S. March 23, 2015
Court of Appeals Case No.
A.H. (Mother), 84A04-1406-JP-261
Appeal from the Vigo Circuit Court
Appellant-Petitioner,
The Honorable David R. Bolk,
v. Judge
D.S. (Father), The Honorable Daniel W. Kelly,
Magistrate
Appellee-Respondent
Case No. 84C01-1105-JP-546
Crone, Judge.
Case Summary
[1] A.H. (“Mother”) appeals the trial court’s modification of custody of her minor
child, G.S., in favor of D.S. (“Father”). Mother was originally granted primary
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custody of G.S. and Father was granted parenting time. In October 2013,
Mother filed her notice of intent to relocate. Father objected to the move and
filed a petition to modify custody. The trial court entered its order granting
Father’s petition to modify and awarding primary custody of G.S. to Father.
On appeal, Mother claims that the trial court abused its discretion because it
failed to consider the proper statutory relocation factors in denying her request
to relocate and granting Father’s petition to modify. Mother further asserts that
the evidence does not support the trial court’s conclusion that relocation was
not in G.S.’s best interests and that custody modification was warranted.
Finding no abuse of discretion and sufficient evidence, we affirm.
Facts and Procedural History
[2] G.S. was born out of wedlock on March 10, 2009. Mother and Father signed a
paternity affidavit at the hospital establishing Father’s paternity. The parties
remained in a relationship and resided in Terre Haute after G.S.’s birth. That
relationship eventually ended and the parties appeared in court for the first time
on September 7, 2011, to establish parenting time and support. Father was
ordered to pay child support and was granted visitation in accordance with the
Indiana Parenting Time Guidelines. In its written order, the trial court
specifically advised the parties regarding Indiana’s Relocation Statute, Indiana
Code Section 31-17-2.2-1 et. seq., and the notice requirements involved if either
parent was contemplating a move.
[3] Five months later, Father filed a petition for temporary restraining order
(“TRO”) to prevent Mother from relocating, without the proper statutory
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notice, to Pekin, Illinois, in order to take a job at Cracker Barrel located in
Bloomington, Illinois. The trial court granted the TRO and held a hearing on
February 13, 2012. Following the hearing, Mother withdrew her request to
relocate.
[4] Two weeks later, Mother filed a new notice of her intent to relocate to Pekin.
Father objected and the court conducted a lengthy hearing on April 24, 2012.
The parties agreed to submit their dispute to mediation. When the parties failed
to reach an agreement in mediation, the matter was again heard by the trial
court on February 1 and 4, 2013. Thereafter, the court issued its order
permitting Mother to move with G.S. as far as 100 miles from Terre Haute in
order to accommodate her job opportunity with Cracker Barrel. The court
acknowledged that although this would still require a forty-five-minute
commute for Mother, the 100-mile limit on the move would allow Father to
remain involved in G.S.’s activities as he had been consistently for the first
three years of G.S.’s life. The court also warned, “If a move of a greater
distance is made by Mother, custody shall be transferred to Father.” Appellant’s
App. at 17.
[5] On October 10, 2013, Mother filed yet another notice of her intent to relocate to
Pekin. Mother claimed that while she had already moved within the 100-mile
limit to Mahomet, Illinois, she still wanted to move farther to Pekin. Father
timely filed his objection to the relocation and requested a modification of child
custody from Mother to Father. An evidentiary hearing was held on April 11,
2014. Father presented evidence to the trial court which indicated that Mother
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was not actually living in Mahomet and had moved “for all intents and
purposes” to Pekin with G.S. despite court orders forbidding her from doing so.
Id. at 17.
[6] The court concluded in relevant part,
The court’s order of February, 2013 specifically stated that the 100-
mile accommodation to Mother’s job at Cracker Barrel was to allow
Father to be involved in [G.S.’s] school and extracurricular activities.
Despite this, Mother enrolled [G.S.] in a preschool in Pekin and that
very spring allowed her mother to enroll [G.S.] in a teeball league in
Pekin and told Father nothing about it. Even had Father been so
informed, as required by the [Indiana Parenting Time Guidelines], the
three-hour distance from Father’s home would not allow Father, a
former teeball coach to his older son, to watch any of the games.
This is precisely the deprivation of parental involvement against which
the court was attempting to protect Father by its order of February,
2013.
While the evidence regarding the fitness of each party to be the
primary custodian of [G.S.] is mixed and conflicting, Father appears to
be genuinely and consistently trying to remain fully involved in
[G.S.’s] life, while Mother appears equally bent on living in Pekin
where her mother resides – a distance of three hours away from
Father, despite the court’s multiple rulings to the contrary.
….
For all the foregoing, the court finds that there has been a substantial
and continuing change in one or more factor[s] relative to custody and
that it would be in the minor child’s best interests to be placed in the
primary care of his father. Mother should be awarded parenting time
in accordance with the Indiana Parenting Time Guidelines. If the
Mother should choose to move back to Vigo County, Indiana, the
scales could possibly be tipped back in her favor on the issue of
primary custody, but having Father’s role in [G.S.’s] life continually
diminished by Mother is not in the minor child’s best interests, and
nothing short of this modification would appear to prevent this at this
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time. Simply stated, [G.S.] is to be raised by his parents; not by his
mother and grandmother.
Id. at 18-19. Mother filed a motion to reconsider, which was denied by the trial
court. This appeal followed.
Discussion and Decision
[7] Mother asserts that the trial court erred in granting Father’s petition for custody
modification and awarding primary physical custody of G.S. to Father. Our
standard of review is well settled.
When reviewing a custody determination, we afford the trial court
considerable deference as it is the trial court that observes the parties’
conduct and demeanor and hears their testimonies. 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.” We will
not reweigh the evidence or judge the credibility of witnesses. Rather, we
will reverse the trial court’s custody determination based only upon a trial
court’s abuse of discretion that is “clearly against the logic and effect of
the facts and circumstances or the reasonable inferences drawn
therefrom.” “[I]t is not enough that the evidence might support some
other conclusion, but it must positively require the conclusion contended
for by the appellant before there is a basis for reversal.”
In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012) (citations
omitted), trans. denied.
[8] Our preference for granting latitude and deference to our family-law trial judges
is reinforced by the concern for finality in custody matters. See Baxendale v.
Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008). Additionally, we accord this
deference because trial courts directly interact with the parties and are in a
superior position “to assess credibility and character through both factual
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testimony and intuitive discernment.” Best v. Best, 941 N.E.2d 499, 502 (Ind.
2011). 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, and scrutinized their testimony as it came
from the witness stand, did not properly understand the significance of the
evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
[9] We note that Father failed to timely file a proper appellee’s brief. When an
appellee fails to submit a brief on appeal, we apply a less stringent standard of
review with respect to the showing necessary to establish reversible error. In re
Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied. We
may reverse if the appellant establishes prima facie error, which is an error at
first sight, on first appearance, or on the face of it. Id. “Moreover, we will not
undertake the burden of developing legal arguments on the appellee’s behalf.”
Id. Nevertheless, even under this less stringent standard, we are obligated to
correctly apply the law to the facts in the record to determine whether reversal
is warranted. Tisdale v. Bolick, 978 N.E.2d 30, 34 (Ind. Ct. App. 2012).
[10] The current custody modification stems from Father’s petition to modify child
custody in response to Mother’s notice of intent to relocate. When a parent
files a notice of intent to relocate, the nonrelocating parent may object by filing
a motion to modify custody or to prevent the child’s relocation. Ind. Code §§
31-17-2.2-1(b), 31-17-2.2-5(a). The Relocation Statute provides that when a
party moves to modify custody in response to the proposed relocation of the
other parent, the trial court must take certain factors into consideration. Jarrell
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v. Jarrell, 5 N.E.3d 1186, 1190 (Ind. Ct. App. 2014), trans. denied. Specifically,
in considering a proposed relocation, the trial court must “take into account”
the following factors:
(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating
individual to exercise parenting time or grandparent visitation.
(3) The feasibility of preserving the relationship between the
nonrelocating individual and the child through suitable parenting time
and grandparent visitation 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 relocating 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.
[11] Ind. Code § 31-17-2.2-1(b). The “[o]ther factors affecting the best interest of
the child” include the statutory factors relevant to an initial custody order or a
modification of that order, such as the child’s age and sex; the parents’ wishes;
the child’s wishes; the child’s interaction and interrelationship with parents,
siblings, and other persons affecting the child’s best interest; and the child’s
adjustment to home, school, and the community. Ind. Code § 31-17-2-8. In
contrast to a modification of child custody pursuant to the Modification Statute,
Indiana Code Section 31-17-2-21, a relocation-based modification need not
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involve a substantial change to one of the original best interest factors. Jarrell, 5
N.E.3d at 1190 (citing Baxendale, 878 N.E.2d at 1256-57).
[12] Accordingly, prior to granting a relocation-based petition to modify custody,
the trial court is required to consider all the enumerated relocation factors listed
in Indiana Code Section 31-17-2.2-1(b). In re Marriage of Harpenau, 17 N.E.3d
342, 347 (Ind. Ct. App. 2014). Mother first claims that the trial court did not
consider the proper statutory factors in making its ruling but instead considered
this matter using a non-relocation custody modification framework. We
acknowledge that while the trial court did reference the non-relocation custody
modification standard in one of its findings,1 our review of the record and the
trial court’s numerous other findings indicates that the trial court did in fact
properly consider evidence relevant to each of the relocation factors. There is
ample evidence in the record regarding: (1) the distance involved in Mother’s
proposed change of residence; (2) the hardship and expense involved for Father
to exercise parenting time; (3) the feasibility of preserving the relationship
between Father and G.S.; (4) whether there is an established pattern of conduct
by Mother to promote or thwart Father’s contact with G.S.; (5) the reasons
each parent seeks or opposes the relocation; and (6) other factors affecting the
best interest of G.S. While we understand that Mother may disagree with the
1
Specifically, the trial court found “that there has been a substantial and continuing change in one or more
factor[s] relative to custody and that it would be in [G.S.’s] best interests to be placed in the primary care and
custody of his father.” Appellant’s App. at 18. We fail to see how applying a more stringent standard
requiring the finding of an additional element would inure to Mother’s disadvantage.
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weight of the evidence regarding each factor, her argument that the trial court
wholly failed to consider evidence of the appropriate factors is without merit.
[13] Mother maintains that even if the trial court considered the proper factors, the
evidence does not support the trial court’s conclusion that relocation was not in
G.S.’s best interests and that modification of custody was warranted. Where,
as here, the non-relocating parent files a motion to prevent relocation, the
relocating parent must prove “that the proposed relocation is made in good
faith and for a legitimate reason.” Ind. Code § 31-17-2.2-5. If the relocating
parent makes such a showing, “the burden shifts to the nonrelocating parent to
show that the proposed relocation is not in the best interest of the child.” Id.
[14] Because the trial court made no specific finding that Mother’s request to
relocate to Pekin was not made in good faith or for a legitimate reason, 2 we will
assume that Mother met her burden and focus on the trial court’s ultimate
determination that relocation was not in G.S.’s best interest and that a change
in custody was warranted. The evidence indicates that Mother’s relocation to
Pekin would put G.S. almost three full hours away from Father. While Mother
insists that the move would not impose any additional hardship and expense on
Father to exercise his allotted parenting time, there is ample evidence in the
record to support a conclusion that the move would greatly interfere with the
2
While the trial court acknowledged that Mother claimed that an employment opportunity was her reason
for relocating to Pekin, the trial court clearly implied in its findings that it questioned Mother’s motives.
Appellant’s App. at 18.
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close relationship between Father and G.S. The trial court’s prior 100-mile
relocation accommodation for Mother’s employment opportunity was an
attempt to harmonize Mother’s desire to relocate with Father’s ability for
parental involvement.
[15] It is crystal clear from this record that Father desires, not simply the minimum
parenting time, but to be actively involved in G.S.’s school and extracurricular
activities. There was significant evidence presented to the trial court that
Mother has disregarded prior court orders and has instead exhibited a
consistent pattern of attempting to thwart Father’s relationship with G.S.
Indeed, the trial court specifically found that Mother inappropriately used G.S.
as leverage by threatening Father that she would allow him no additional
parenting time with G.S. unless he consented to her relocation to Pekin.
Appellant’s App. at 18. As noted, the trial court’s prior accommodation was an
attempt to balance the parties’ competing desires in the best interest of G.S.,
and the record shows that Mother has done much to upset that balance. Based
upon the evidence, including its extended history in dealing with these parents,
the trial court concluded that relocation was not in G.S.’s best interest and that
custody modification was warranted.
[16] “When reviewing a determination regarding the best interests of a child for
relocation purposes, we ‘view the evidence in the light most favorable to the
trial court’s decision and defer to the trial court’s weighing of the evidence.’”
H.H. v. A.A., 3 N.E.3d 30, 37 (Ind. Ct. App. 2014) (quoting T.L. v. J.L., 950
N.E.2d 779, 788-89 (Ind. Ct. App. 2011)). Considering the evidence favorable
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to the trial court’s judgment and the reasonable inferences flowing therefrom,
we cannot say that Mother has established prima facie error here. Mother
essentially requests that we reweigh the evidence in her favor, a task not within
our prerogative on appeal. The judgment of the trial court is affirmed.
[17] Affirmed.
Friedlander, J., and Kirsch, J., concur.
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