Aug 13 2015, 8:36 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Monty K. Woolsey Mark Small
Cross, Pennamped, Woolsey & Glazier, Indianapolis, Indiana
P.C.
Carmel, Indiana Roberta L. Ross
Ross and Brunner
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David V. Taylor, August 13, 2015
Appellant-Respondent, Court of Appeals Case No.
49A04-1502-DR-58
v. Appeal from the Marion Superior
Court
Sheryl Crowder Taylor, The Honorable Heather A. Welch,
Appellee-Petitioner. Judge
Cause No. 49D01-0402-DR-230
(moved from 49D12-0402-DR-230)
Najam, Judge.
Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015 Page 1 of 20
Statement of the Case
[1] David Taylor (“Father”) appeals the trial court’s retroactive modification of his
child support payments. He presents one issue for our review, which we revise
and restate as follows: whether the trial court erred when it modified his child
support payments retroactively, based on his notice of intent to relocate, before
either party had filed a petition to modify child support. The trial court held
that when Father filed notice of intent to move and his petition to modify
custody, the court was also authorized to modify support. We disagree and
hold that the retroactive support order was contrary to law because the statute
requires a party to file a petition to modify a child support order.
[2] We reverse and remand with instructions.
Facts and Procedural History
[3] Father married Sheryl Crowder Taylor (“Mother”),1 and two children, M.T.
and L.T., were born of the marriage (collectively “the children”). Father and
Mother dissolved their marriage on December 6, 2004, and the trial court
entered a permanent custody order on March 9, 2007, which provided for joint
legal and physical custody of the children. On June 20, 2009, the court entered
a child support order that directed Father to pay child support to Mother in the
1
The record does not disclose when the two were married.
Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015 Page 2 of 20
amount of $107.82 per week. The June 2009 order remained in effect until the
current dispute. M.T. is now emancipated, and L.T. is fifteen years old.
[4] On April 15, 2011, Father filed notice of his intent to relocate from Indianapolis
to Alabama (“relocation notice”) to pursue an employment opportunity. In the
relocation notice, Father stated that he “anticipate[d] a change in custody, child
support[,] and/or child support orders.” Appellant’s App. at 102. The
relocation notice also contained a statement informing Mother that she “may
file a petition to modify a custody order, parenting time order, grandparent
visitation order[,] or child support order.” Id. That same day, Father filed a
petition to modify child custody with respect to L.T., which requested to
remove L.T.2 from Indianapolis to Alabama but did not reference—let alone,
request—a modification of child support. On May 4, 2011, Mother objected to
Father’s petition to modify child custody, and, concomitantly, she filed an
emergency petition for a temporary change of custody.3 Neither of Mother’s
filings requested a modification of child support.
[5] Father moved from Indianapolis on or before May 4, 2011, but, due to several
continuances, the parties’ competing petitions remained pending until late
2
Throughout the duration of this case, Father’s relationship with M.T. deteriorated completely. On July 21,
2009, Mother was granted sole physical custody over M.T., and, on September 14, 2011, Mother was also
granted sole legal custody over M.T. Father was granted parenting time.
3
The trial court ultimately determined that no emergency existed.
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2014.4 In the interim, the parties filed several other motions, which included a
July 13, 2012, unopposed motion by Father to vacate a final hearing date on his
petition to modify custody (“July 2012 motion”) and a March 6, 2013, motion
by Mother to, among other things, “Complete Pending Modification of
Custody and Support” (“March 2013 motion”). Appellant’s App. at 41.
[6] In his July 2012 motion, Father stated:
The amount of child support Father should pay is an issue that
remains to be determined but the support cannot be calculated
until Father’s parenting time is decided. After the parties agree
on a parenting schedule with a parenting coordinator, the
attorneys should be able to do the support calculation. The
undersigned hopes there will not be the necessity of a further
hearing on any issue in this case.
Id. at 112b. The trial court granted Father’s motion.
[7] In Mother’s March 2013 motion, she stated that, “[o]n or about April 15, 2011,
[Father] filed a Motion to Modify custody and support as well as an intent to
move.” Id. at 113. Thus, Mother asked the court to calculate “the amount of
past due support.” Id. In response to Mother’s motion, on July 15, 2013,
Father filed a motion to dismiss, in which he declared:
4. . . . [N]either party has filed a request to modify child support.
4
In June 2011, the parties mediated the issue and reached a partial agreement, but that agreement is not
contained in the record. In December 2013, the court issued a temporary order that gave Father parenting
time over L.T., and at a hearing on all pending matters, held on August 11 and 12, 2014, Husband indicated
that he no longer requested a transfer of physical custody of L.T. to him.
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5. On April 15, 2011, Father filed his Notice of Intent to Move[,]
in which he noted that Mother “may file a petition to modify a
custody order, parenting order, grandparent visitation order, or a
child support order.”
6. Also on April 15, 2011, Father filed his Verified Petition for
Modification of Custody. No where [sic] in this request for a
modification of custody [is] a request to modify child support.
7. Mother has never filed a petition to modify child support.
***
9. As such, to the extent that Mother’s March 6, 2013[,] petition
requests a modification of child support effective at any time
prior to August 2013, Father believes that that request ought to
be dismissed as constituting a[n improper] request for retroactive
modification of child.
Id. at 116.
[8] On August 5, 2013, Mother objected to Father’s motion to dismiss. In support,
Mother highlighted that, in his relocation notice, Father stated that he
“anticipate[d] a change in custody, child support, and/or parenting time due to
this move.” Id. at 118. Mother also emphasized the statement Father made in
his July 2012 motion that “[t]he amount of child support Father should pay is
an issue that remains to be determined . . . [.]” Id. at 120. As such, Mother
asserted:
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1. The most recent matters before this court were precipitated by
[Father’s] Notice of Intent to Move and Petition to Modify
Custody filed April 15, 2011.
***
3. By [Father’s] own pleading[s], the matter of support is before
this court as of April 15, 2011.
***
5. Simultaneous with the Notice of Intent to Move, [Father] filed
his Petition to Modify Custody. In so doing, he triggered the
hearing that required the court to address the issues of custody,
support[,] and visitation.
6. Thereafter, [Mother] filed a Verified Emergency Petition for
Temporary Change of Custody and Objection to Move of Child
on May 4, 2011. Again, this triggers a requirement for a hearing
in which the court “shall set the matter for a hearing to review
and modify, if appropriate, a custody order, parenting time order,
grandparent visitation order, or child support order.”
***
10. . . . [Father] alleges that[,] absent [Mother] filing a redundant
modification of support based upon the mandatory duty placed
on this court by [Indiana Code Section] 31-17-2.2-1, the Court
cannot and should net ever consider the effect of a move out of
State on an existing child support order. That being the case, the
entire statute must be ignored and the matter of [Father] moving
cannot be taken into consideration by this court in any future
hearings.
***
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13. Notice of Intent to Move[,] by its very nature[,] is a Petition
to Modify all present circumstances based upon a substantial
change of circumstances for a party[,] which, by its very nature,
renders the [March 2007 custody] order inappropriate.
Id. at 118, 120-22. The trial court agreed with Mother and denied Father’s
motion to dismiss. In so doing, the court concluded, “The matter of support
was properly placed before this court by [Father on] April 15, 2011[,] and shall
be heard with all other matters in January 2014.” Id. at 124.
[9] The January 2014 hearing was continued and, ultimately, was held over the
course of August 11, August 12, and September 15, 2014. At the hearing, the
parties presented evidence of their respective incomes from 2011 onward. On
November 5, 2014, the trial court entered a thorough “Order on All Pending
Motions.” Id. at 57. In the order, the trial court noted:
Mother and Father’s attorneys agreed that the Father’s
overnights changed when he moved to Alabama . . . and that the
split physical custody arrangement was no longer being executed
by the Mother and Father due to the distance.
***
From May 4, 2011 through August 31, 2013 . . . [t]he Court finds
that the Mother ha[d] a[n average] gross weekly income of
$1,213.79. For this same time period, the Court finds the Father
ha[d] a[n average] gross weekly income of $3,090.50. . . . This is
the time period when both [M.T.] and [L.T.] resided at home and
Father had moved to Alabama. The average number of
overnights from 2011, 2012, and 2013 is 58 for Father. . . .
Therefore, the Father shall pay child support from May 4, 2011[,]
through August 30, 2013[,] in the amount of $327.00. . . .
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From August 31, 2013[,] to August 6, 2014, the Court finds that
the Mother ha[d] a[n average] gross weekly income of $1,110.47
and the Father ha[d] a[n average] gross weekly income of
$3,337.83. . . . This is when [M.T.] was living away from home
and in college before she was emancipated. The Court hereby
orders the Father to pay child support in the amount of
$274.00. . . . The Court finds that the Father is entitled to 66-70
overnights. . . .
From August 7, 2014, forward the Court finds the Mother has a
gross weekly income of $1,099.54 and the Father of $3,366.01.
The Father is entitled to 73 overnights. The Court hereby orders
that the Father pay child support in the amount of $235.00. . . .
***
. . . [T]he Court finds that the Father’s [c]hild support arrearage
as of August 7, 2014[,] was $21,317.75. The Court hereby orders
the Father to pay $250.00 per week toward the arrearage
beginning November 7, 2014. . . .
Id. at 80-85.
[10] After the trial court issued its order, Father filed a motion to correct error. In
relevant part, Father alleged that the court’s modification of his child support
payments retroactive to May 4, 2011, was contrary to law because no party had
filed a petition to modify child support and, therefore, no party had placed the
issue of child support before the court at that time. On January 13, 2015, the
court denied the husband’s motion and, in so doing, stated:
Father was no longer permanently living in Indianapolis as of
May 4, 2011[,] and did not maintain the split custody
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arrangement as he ha[d] previously[,] where [L.T.] would spend
one week with his Mother and one week with his Father. Thus,
it would be unfair to reward a parent for moving far away from
his/her children, exercising less parent[ing] time and not
fulfilling a joint custody arrangement, and then prohibit
modification of child support back to when such change in
circumstances [occurred]. This is not in the best interest[s] of the
minor children. In this case, Indiana law[,] under the relocation
statute[,] provides the Court with the authority to modify a . . . child
support order. This Court utilized this statutory authority to properly
modify the Father’s child support and make it effective May 4, 2011[,]
based on all the evidence presented.
Id. at 146 (emphasis added). This appeal ensued.
Discussion and Decision
[11] Father argues that the trial court erred when it modified his child support
payments retroactive to May 4, 2011. “Decisions regarding child support rest
within the sound discretion of the trial court.” Haley v. Haley, 771 N.E.2d 743,
752 (Ind. Ct. App. 2002). Thus, we reverse child support determinations only if
the trial court abused its discretion or made a determination that is contrary to
law. Id. “A trial court has the discretionary power to make a modification for
child support relate back to the date the petition to modify is filed, or any date
thereafter.” Id. A “retroactive modification of support is erroneous only if the
modification purports to relate back to a date earlier than that of the petition to
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modify.”5 Carter v. Dayhuff, 829 N.E.2d 560, 567 (Ind. Ct. App. 2005) (quoting
Reeves v. Reeves, 584 N.E.2d 589, 594 (Ind. Ct. App. 1992), trans. denied). “This
rule serves to avoid encouragement of dilatory tactics and further the purposes
of the changed circumstances rule.” Smith v. Mobley, 561 N.E.2d 504, 508 (Ind.
Ct. App. 1990), trans. denied.
[12] Indiana’s relocation statute requires a “relocating individual” to “file a notice of
the intent to move” with the appropriate court and with the “nonrelocating
individual.” Ind. Code § 31-17-2.2-1(a). In addition to changes in personal
information wrought by the relocation, the relocation notice must contain “[a]
statement that a nonrelocating individual may file a petition to modify a
custody order, parenting time order, grandparent visitation order, or child
support order.” I.C. § 31-17-2.2-3. And, “[u]pon motion of a party, the court
shall set the matter for a hearing to review and modify, if appropriate, a custody
order, parenting time order, grandparent visitation order, or child support
order.” I.C. § 31-17-2.2-1(b). “The purpose of this notice is . . . to provide the
means for the trial court to modify visitation and support orders that may
become unreasonable due to a long distance move by the custodial parent.”
Fridley v. Fridley, 748 N.E.2d 939, 941 (Ind. Ct. App. 2001).
[13] Here, it is undisputed that, prior to March 6, 2013, neither Father nor Mother
had filed a petition to modify child support. In Father’s relocation notice, he
5
Retroactive modification is permitted in two circumstances, but those circumstances are not relevant here.
See Becker v. Becker, 902 N.E.2d 818, 820 n.4 (Ind. 2009).
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stated that he “anticipate[d] a change in . . . child support,” but he did not
request a modification of that support. Appellant’s App. at 102. Instead, as the
relocation statute requires, Father alerted Mother that she could file such a
motion. See I.C. § 31-17-2.2-3(a)(2)(H). Similarly, although Father filed a
petition to modify custody in conjunction with his relocation notice, Father,
again, did not request a modification of child support. Neither did Mother
request a modification of child support in her objection to Father’s petition to
modify custody or in her emergency petition for a temporary change of custody.
And, finally, although Father acknowledged in his unopposed July 2012
motion that child support was an issue that needed to be determined in the
future, Father did not ask the trial court to make that determination. Rather,
Father indicated that he hoped to reach an agreement with Mother regarding
parenting time and child support without further court intervention.
[14] Thus, the first motion filed by either party that could be construed as a petition
to modify child support came on March 6, 2013, in the form of Mother’s
motion to “Complete Pending Modification of Custody and Support.”
Appellant’s App. at 113. Despite this, the trial court modified Father’s child
support payments retroactive to May 4, 2011, the date that Father had left
Indiana and, in the absence of a court order, that the parties had sua sponte
modified the physical custody arrangement. In so doing, the trial court stated
that the relocation statute provided it with the statutory authority to make the
retroactive child support modification. In other words, the trial court
determined that Father’s relocation notice, even in the absence of a petition to
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modify child support, gave the court the power to modify Father’s child support
effective the date of his relocation notice.
[15] In this appeal, Father asserts that the trial court erred as a matter of law when it
applied the relocation statute in this manner, and, therefore, he states that our
standard of review is de novo. In contrast to the trial court’s order, Father
argues that Mother’s March 6, 2013, motion is the first date that either party
effectively petitioned to modify child support and, consequently, “is the most
remote date the trial court could arguably use when making a retroactive child
support modification in this case.” Appellant’s Br. at 9.
[16] Mother, however, disputes that the trial court erred as a matter of law when it
modified Father’s child support, and, moreover, Mother even challenges that
our standard of review in this appeal is de novo. In this regard, she contends
that the correct standard of review is abuse of discretion and complains that
Father failed to provide a transcript of evidentiary hearings and an adequate
record to support his appeal. Mother alleges that the missing transcript would
show that Father waived any objection to the child support order and that he is
also estopped to complain about it.
[17] But if Mother believed the record provided by Father on appeal was
inadequate—and that a more complete record would show that Father failed to
object and, therefore, waived any objection to an order modifying child
support—Mother could have supplemented the record. See Ind. Appellate
Rules 9(G) & 49(A). Instead, Mother asks us to make that determination
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without providing a record to support it. And Husband’s appeal is based on
Mother’s alleged failure to petition for a modification of trial support, and the
record shows that Mother did not place the issue of child support before the
trial court until March 6, 2013.
[18] Thus, we agree with Father that we are faced with an issue of statutory
interpretation: we must determine whether a statutorily-required relocation
notice, without further motion by any party, also places the issue of child-
support modification in front of the trial court for its determination.
“Generally, statutory interpretation is a question of law and determinations in
that regard are subject to de novo appellate review.” Higgins v. State, 855
N.E.2d 338, 341 (Ind. Ct. App. 2006). Because we agree with Father that the
trial court’s child-support determination was contrary to law, we reverse. See
Haley, 771 N.E.2d at 752.
[19] There is no question that, in addition to the relocation notice itself, our
relocation statute anticipates and also requires the filing of a petition to modify
child support before the trial court has the authority to modify a child support
order. Indeed, Indiana Code Section 31-17-2.2-3(a)(2)(H) requires that the
relocation notice itself provide notice to the nonrelocating individual that she
“may file a petition to modify a custody order . . . or child support order.”
Even more telling, Section 31-17-2.2-1(b) states, “Upon motion of a party, the
court shall set the matter for a hearing to review and modify, if appropriate, a
custody order . . . or child support order.” (Emphasis added.) While the
purpose of a relocation notice is “to provide the means for the trial court to
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modify visitation and support orders that may become unreasonable due to a
long distance move by the custodial parent,” Fridley, 748 N.E.2d at 941, the
filing of a motion is a procedural prerequisite that must be satisfied before the
court may modify a support order under the statute, cf. Fight Against Brownsburg
Annexation v. Town of Brownsburg, ___ N.E.3d ___, 2015 WL 2328736, at *3-6
(Ind. Ct. App. May 15, 2015) (explaining that, although a court has subject
matter jurisdiction over a given issue, the parties must still satisfy certain
procedural prerequisites to state a claim). A relocation notice is, in itself,
insufficient to trigger consideration of a child support modification.6 Here, the
trial court erred as a matter of law when it concluded that, without such a
motion from either party, Father’s relocation notice gave the court the authority
to modify the existing child support order retroactive to May 4, 2011, the date
Father was no longer living in Indianapolis.
[20] The parties’ competing petitions to modify child custody also did not place
modification of child support in front of the court. The two issues, while
frequently related, are distinct and are treated as such by our Code. Compare
I.C. §§ 31-16 (governing the “Support of Children and Other Dependents”) with
I.C. §§ 31-17 (governing “Custody and Visitation Rights”). Indeed, the
6
The dissent characterizes our interpretation of the relevant statutes as “overly technical.” We think not.
The relocation notice does not, in itself, trigger consideration of child support. The text of the statute requires
that a child support modification be requested by a party. This is not a technicality but a statutory
requirement. We cannot ignore the plain meaning of a statute where the legislature has spoken clearly and
unambiguously on the point in question. See Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc., 746
N.E.2d 941, 947 (Ind. 2001).
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relocation statute is written in the disjunctive; it speaks of motions by a party to
modify child custody or child support. See I.C. §§ 31-17-2.2-1(b), 31-17-2.2-
3(a)(2)(H). Our reading of the relocation statute also comports with prior case
law. In this regard, we find instructive this court’s opinion in Smith v. Mobley,
561 N.E.2d 504 (Ind. Ct. App. 1990), trans. denied.
[21] In Smith, the trial court ordered Smith, the mother, to pay child support to
Mobley, the father. On January 3, 1989, Smith filed a relocation notice, and,
on January 20, Mobley filed a petition to modify custody. Id. at 505, 508.
Subsequently, on February 24, Smith lost her job, and she had no income after
March 10. Id. at 508. On March 22, Smith sent a letter to the trial court
“indicating that she was unemployed and asking whether she could have her
support payments reduced.” Id. The trial court took Smith’s letter under
advisement and subsequently held a hearing. Id. On September 29, the trial
entered a modification decree, in which the court modified Smith’s child
support payments effective that same day. Smith appealed and argued that “the
trial court erred in failing to make the reduction in her support payments
retroactive to the time at which she became unemployed.” Id. at 507.
[22] This court agreed with Smith and reversed the trial court. Id. at 508. However,
on remand, we did not instruct the trial court to make Smith’s reduced
payments effective February 24, the date Smith lost her job, which was after
Smith had filed her relocation notice and Mobley had filed his petition to
modify custody. Instead, we construed the March 22 letter that Smith had sent
to the trial court to be a petition to modify child support payments, and we
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instructed the trial court to make the reduction of Smith’s child support
payments effective as of the date of that letter. Id. at 508. Notably, the letter
“ask[ed] whether [Smith] could have her support payments reduced,” and “it
signaled to the court an apparent significant and continuing change in
circumstances warranting a modification of the previous support order.” Id.; see
also I.C. § 31-16-8-1(b)(1) (stating that a child support order may be modified
“upon a showing of changed circumstances so substantial and continuing as to
make the terms unreasonable”).
[23] The decision in Smith is significant. If a relocation notice, by itself, were
sufficient to place the issue of child support in front of a trial court, then in
Smith this court could have instructed the trial court on remand to make the
modification of Smith’s child support retroactive to the date she lost her job,
February 24. That date was after Smith had filed her relocation notice, and “[a]
trial court has the discretionary power to make a modification for child support
relate back to the date the petition to modify is filed, or any date thereafter.”
Haley, 771 N.E.2d at 752. Similarly, if a motion to modify child custody, even
when considered together with a relocation notice, also gave a trial court the
power to modify child support, we could have again instructed the trial court to
make the modification retroactive to the date Smith lost her job because Smith
lost her job after Mobley had filed a motion to modify child custody. We did
not do so. In contrast, and tellingly, we construed Smith’s March 22 letter to be
a petition to modify child support and instructed the trial court to make the
modification to Smith’s support payments retroactive only to that day.
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[24] Neither a relocation nor a change in child custody requires a child support
modification. Both the Smith decision and our reading of the relocation statute
comport with this understanding. Therefore, after a relocation notice is filed, if
a party seeks a modification of an existing child support order that party must
also file a petition to modify child support. A motion that makes other requests
but does not expressly request a modification of child support is insufficient to
place the issue of child support before the trial court for its modification. The
statute unambiguously requires a “motion of a party.” I.C. § 31-17-2.2-1.
Here, again, the first motion to request a modification of child support was filed
by Mother on March 6, 2013. As such, the trial court’s order modifying
Father’s child support obligation retroactive to May 4, 2011, was an abuse of
discretion. See Carter, 829 N.E.2d at 567.
[25] On April 15, 2011, when Father filed his relocation notice, as required by
statute he notified Mother that she could file a petition to modify child support.
It was not until March 6, 2013, that Mother filed a motion that could be
construed as a petition to modify child support. While Father anticipated a
possible modification of his child support payments, anticipation is not
equivalent to the petition and actual notice required before the issue can be
litigated. There is no evidence in the record before us that Husband waived or
acquiesced in a retroactive child support order. Thus, we reverse and remand
with instructions to the trial court to recalculate Father’s arrearage from March
6, 2013.
[26] Reversed and Remanded.
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FRIEDLANDER, J., concurs.
BAKER, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
David V. Taylor, Court of Appeals Case No.
49A04-1502-DR-58
Appellant-Respondent,
v.
Sheryl Crowder Taylor,
Appellee-Petitioner.
Baker, Judge, dissenting.
[27] I respectfully dissent. In my view, the majority’s interpretation of the statutes at
issue is overly technical. When Father filed his initial motion to modify child
custody, he indicated his intent to move out of state and to seek custody of L.T.
Prior to that time, the parties shared joint legal and physical custody of both
children. Father’s initial motion indicated that he anticipated a change in
custody and/or child support. All of these factors, together, served to put the
parties and the trial court on notice that child support was an issue. Moreover,
that would logically be the case, given the dramatic changes in custody and
geographical location that would occur if Father’s motion was granted.
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[28] As the majority notes, the purpose of the statutorily required notice is “to
provide the means for the trial court to modify visitation and support orders
that may become unreasonable due to a long distance move by the custodial
parent.” Fridley v. Fridley, 748 N.E.2d 939, 941 (Ind. Ct. App. 2001). In this
case, the trial court was aware that Father intended to relocate from Indiana to
Alabama and that Father was seeking physical custody of L.T. Clearly, the
parties’ existing child support arrangement would need to be modified,
notwithstanding the fact that neither party filed a motion to modify until March
6, 2013. Under these circumstances, I believe that the trial court was correct to
order that Father’s modified child support obligation was retroactive to May 4,
2011. Therefore, I would affirm the trial court and respectfully dissent from the
result reached by the majority.
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