Amanda Dillon v. Matthew Dillon

Aug 21 2015, 8:54 am

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Deborah M. Agard Jaimie L. Cairns
Law Office of Deborah M. Agard Cairns & Rabiola, LLP
Indianapolis, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Amanda Dillon, August 21, 2015

Appellant-Petitioner, Court of Appeals Case No.
55A04-1407-DR-344
v. Appeal from the Morgan Superior
Court

Matthew Dillon, The Honorable Christopher L.
Burnham, Judge
Appellee-Respondent
Cause No. 55D02-1303-DR-431

Baker, Judge.

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[1] Amanda Dillon (Mother) appeals the judgment of the trial court granting

custody of their daughter to Matthew Dillon (Father). Finding no error, we

affirm.

Facts
[2] Mother and Father were married in 2010. They have one daughter, Maci

(Daughter), whom they raised in their home in Camby. On March 7, 2013,

Mother filed for divorce. Both parties sought custody of Daughter. The trial

court held a preliminary hearing on April 16, 2013. Father, who had moved to

Arizona before Mother filed for divorce, was not in attendance. Following the

hearing, the trial court granted Mother temporary custody of Daughter pending

a final custody determination. The trial court ordered Father to pay weekly

child support while Daughter was in Mother’s custody.

[3] On September 6, 2013, the trial court held a final dissolution hearing. By this

point, Father had settled in California, where he now lives with his new wife.

Following the dissolution hearing, on September 13, 2013, the trial court

entered a decree dissolving the marriage, but reserved the issue of custody for

future determination. The trial court found:

Several factors have been considered by the Court in making a
determination of what is in the best interest of [Daughter] regarding
the most appropriate parent to assume the duties of legal and primary
custodian of the child. More questions are left unanswered than were
resolved at the final hearing in this case. Given the child’s age [five],
the geographical separation of the parents ([Father] residing in
California, and [Mother] residing in Camby, Indiana) and given the
unanswered questions regarding the behavioral health of the parents

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 and fitness to assume appropriate long-term parenting responsibilities,
it is the Court’s position that each parent shall be given a “test period”
to demonstrate their fitness and ability to be the primary custodian of
the child in the future.

Appellant’s App. p. 13.

[4] Pursuant to this order, Daughter spent several months residing in Indiana with

Mother and several months residing in California with Father. On June 6,

2014, the trial court held a final hearing to determine custody. Following the

hearing, the trial court permitted Mother and Father to file post-hearing

memoranda in support of their positions. On June 25, 2014, after considering

the evidence presented at hearing, as well as the post-hearing memoranda, the

trial court issued its judgment granting Father primary physical custody of

Daughter. Mother now appeals.

Discussion and Decision
[5] We are mindful of the fact that, “in custody disputes, ‘the trial court is often

called upon to make Solomon-like decisions in complex and sensitive matters.’”

Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App. 2002) (quoting Speaker

v. Speaker, 759 N.E.2d 1174, 1179 (Ind. Ct. App. 2001)). We grant substantial

deference to a trial court’s decision on such matters as it “is in a position to see

the parties, observe their conduct and demeanor, and hear their testimony.” Id.

For this reason, we will not reweigh the evidence or judge the credibility of the

witnesses. Id. We will not disturb the trial court’s judgment absent an abuse of

discretion. Truelove v. Truelove, 855 N.E.2d 311, 314 (Ind. Ct. App. 2006). An

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 abuse of discretion occurs when the trial court’s decision is clearly against the

logic and effects of the facts and circumstances before it. Id.

[6] Initially, Mother makes two arguments regarding alleged failures to comply

with Indiana Code chapter 31-17-2.2, which governs relocation in child custody

cases. Mother first argues that Father failed to comply with section 31-17-2.2-

1(a), which provides that “[a] relocating individual must file a notice of intent

to move with the clerk of the court.”1

[7] The relocation chapter defines “relocating individual” as “an individual who

has or is seeking: (1) custody of a child; or (2) parenting time with child; and

intends to move the individual’s principal residence.” Ind. Code § 31-9-2-107.5.

Here, Mother fails to argue that Father meets this definition. In this case,

Father moved before Mother filed for divorce. It is clear that Father did not

have custody at the time he moved, and he could not have been “seeking

custody” at the time he moved since he moved before this cause came into

being.

[8] However, regardless of whether Father should be considered a “relocating

individual” for purposes of the relocation chapter, it is clear that notice of his

relocation pursuant to section 31-17-2.2-1 would have been superfluous in this

case. This is because the notice requirement is meant to alert the trial court that

1
We note that Mother did not raise this issue before the trial court and has, therefore, waived it on appeal.
In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007).

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 a parent has relocated so that it may modify an existing child custody order if

necessary. See Farag v. DeLawter, 743 N.E.2d 366, 368 (Ind. Ct. App. 2001)

(discussing the predecessor notice of relocation statute, I.C. § 31-17-2-23

(1998)). This is apparent from the plain language of the next subsection, which

provides that if an individual seeks to relocate, “[u]pon motion of a party, the

court shall set the matter for a hearing to review and modify, if appropriate, a

custody order . . . .” I.C. § 31-17-2.2-1(b) (emphasis added).2 As Father’s

move, which occurred before proceedings in this case began, did not require the

trial court to consider modification of an existing custody order, the relocation

chapter was not implicated.

[9] Mother’s next argument fails for the same reason. She argues that the trial

court erred in failing to comply with a section of the relocation statute providing

that when the court grants a “temporary order permitting the relocation of the

child pending a final hearing” it may not then base its final custody order solely

on a consideration of the period during which the child was relocated. I.C. §

31-17-2.2-6. Mother argues that, in making its final custody determination, the

trial court focused almost exclusively on Father’s time with Daughter in

California.

2
Additionally, the statute makes clear throughout that it is only concerned with relocation of a parent to the
extent that this entails relocation of the child. See, e.g. I.C. §§ 31-17-2.2-5 (nonrelocating individual may file
“motion to prevent relocation of child”); 31-17-2.2-6 (allowing trial court to issue order “restraining or
permitting relocation of child”) (emphases added). Here, as Father had not been granted primary physical
custody of Daughter at the time that he moved to California, he could not, and did not, relocate the child.

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[10] Here, Mother must be arguing that the trial court’s September 13, 2013,

dissolution order, which provided that Mother and Father were to have joint

custody until a final custody determination was made, was a “temporary order

permitting relocation of the child” subject to Indiana Code section 31-17-2.2-6.

However, this is not an accurate characterization of that order. The

preliminary joint custody order was an exceptionally prudent move on the part

of the trial court, providing each parent with a custodial “test period,” from

which both the parents and the trial court could learn before taking a final

position on who should have primary physical custody of Daughter. As such, it

necessarily preceded the initial custody order in this case. Once again, like the

rest of the relocation chapter, section 31-17-2.2-6 clearly applies to situations

where a parent seeks to relocate a child after an initial custody order has been

entered. As Daughter’s location was not fixed until the trial court entered its

initial custody order on June 25, 2014, the preliminary joint custody order

cannot be viewed as an order permitting her relocation.

[11] However, even were we to find that this preliminary joint custody order could

be construed as the type of order to which section 31-17-2.2-6 applies, the trial

court did not, in fact, fail to comply with this section. As will be seen, the trial

court considered many important factors other than the time Daughter spent

with Father in California. Mother’s final argument now turns our attention to

the trial court’s thorough consideration of these factors.

[12] Mother devotes the majority of her brief to reexamining the factors considered

by the trial court in making its custody determination. Indiana Code section

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 31-17-2-8 provides that, before making an initial child custody determination,

the trial court “shall consider all relevant factors,” including: the age and sex of

the child; the child’s interaction with parents and siblings; and the child’s

adjustment to her home, school, and community. The trial court “may” also

consider factors enumerated in the relocation chapter, which include: the

distance involved in the proposed change of residence; the hardship and

expense involved for the nonrelocating individual to exercise parenting time;

and the reasons provided by the relocating individual for seeking relocation.

I.C. § 31-17-2.2-2.

[13] Initially, we note that neither party requested that the trial court make specific

findings of fact and conclusions thereon. Appellant’s Br. p. 5. “In the absence

of special findings, we review a trial court decision as a general judgment and,

without reweighing evidence or considering witness credibility, affirm if

sustainable upon any theory consistent with the evidence.” Baxendale v. Raich,

878 N.E.2d 1252, 1257 (Ind. 2008). We reiterate that if any evidence supports

the judgment, we will not substitute our own judgment for that of the trial

court. Id. at 1258.3

[14] A review of Mother’s argument makes clear that she is asking us to reweigh the

evidence. Relying heavily on the factors contained in the relocation chapter,

3
Mother attempts to compare her case to two recent decisions of this Court affirming trial court judgments
that relocation was not in the child’s best interests. H.H. v. A.A., 3 N.E.3d 30 (Ind. Ct. App. 2014); Myers v.
Myers, 13 N.E.3d 478 (Ind. Ct. App. 2014). Mother must be mindful of the fact that here, in asking us to
reverse the trial court’s judgment, she carries a much heavier burden.

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 Mother argues that “Father failed to establish legitimacy in his move to

California beyond the wonderful woman he met.” Appellant’s Br. p. 14. First,

we note that the trial court was not “required” to consider the factors

enumerated in the relocation chapter. Section 31-17-2.2-2 of that chapter

specifically provides that “[i]f a party provides notice of relocation at an initial

hearing to determine custody, the court may consider the factors set forth in this

chapter in the court’s initial custody determination.” (emphasis added). Here,

the trial court had notice of Father’s relocation prior to entering an initial

custody order. Therefore, this provision applies.

[15] Second, even if the trial court was required to consider this factor (which is, in

any event, merely one factor among many) it had evidence before it to support

the conclusion that Father had moved for “legitimate” purposes. The trial

court found that:

[Father] lives in a four bedroom home in Riverside, California; the
home is owned by his current spouse, Luz Dillon. [Father] grew up
through the time of his high school graduation in Arizona, when he
relocated to the Midwest. After [Mother] and [Father’s] separation,
[Father] moved back to Arizona to reside with his mother [] then later
relocated to Riverside, California for employment opportunities and
upon remarriage after the divorce in this case was finalized in
September 2013.

Appellant’s Br. p. 24. Father testified at the hearing: “I moved to Arizona and

then I met my fiancé[e] and then I was able to find good job opportunities out

there with trucking. And [I] also wanted to move on with my relationship with

my now fiancé[e].” Tr. p. 71-72. Thus, assuming that the trial court’s finding

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 that Father moved to California “for employment opportunities and upon

remarriage” was as essential as Mother believes it to be, it is nevertheless

supported by the evidence. Appellant’s Br. p. 24.

[16] Mother next focuses on Daughter’s adjustment to home, school, and

community. The trial court took Daughter’s home life in Indiana into account,

noting:

[Mother] lives in . . . the former marital residence that [Daughter] grew
up in until the divorce . . . . [Mother’s] life has stabilized and
improved since the divorce was finalized, and she presently has stable,
gainful, employment . . . . [Mother] [] and [Daughter] have extended
family on [Mother’s] side in the local area, and the extended family
interacts regularly.

Id. However, the trial court also had evidence before it that Father had

extended family in California and Arizona. Tr. p. 35-36. Thus, the evidence

showed that Daughter’s cross-country move would make it harder for her to see

some members of her family while making it easier for her to see other

members of her family. We find no error in the trial court’s careful weighing of

these competing interests.

[17] As for school, Mother takes issue with Father’s decision to enroll Daughter in

kindergarten at the Reach Academy, a charter school in California. Id. at 18.

Mother contends that, had Daughter stayed in Indiana, Mother would have

enrolled her at North Madison Elementary, which Mother contends is a

superior school. The trial court noted that “North Madison Elementary school

has an excellent record of education of its students in Indiana.” Id. at 24.

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 However, the trial court heard testimony from Daughter’s kindergarten teacher

in California that Daughter was doing exceptionally well in her class, that she

was on course to begin first grade next year, and that Father was consistently

involved in Daughter’s education since enrolling her at the Reach Academy.

Tr. p. 9-10.

[18] This evidence supports the trial court’s finding that Father has “taken an active

role in [Daughter’s] education, care, and development.” Appellant’s Br. p. 24.

The trial court also found that Father was “the primary caregiver of [Daughter]

when [Father] and [Mother] lived together” and that, since moving to

California, “[Father] has seen to it that [Daughter’s] development has been

enhanced by involvement with normal childhood activities beyond school,

including dance classes and involvement in Sunday school at the family’s

church.” Id. Mother does not contest these findings and we cannot ignore

them simply because Mother speculates that Daughter may do better in a

different school.

[19] Mother also points to the fact that she will have to travel to California to visit

Daughter, and that this will require her to take off work and incur travel costs.

The trial court addressed this issue fully:

Regardless of which parent is responsible as [Daughter’s] primary
physical custodian, the other parent will be incurring substantial costs
in travel expenses for extended parenting time, holiday parenting time,
and periodic parenting time with [Daughter] in her State during the
school year. [Mother] and [Father’s] respective incomes . . . are nearly
equal. [Daughter] will need to be escorted by a parent during her
plane travel to and from the other parent’s home, thus incurring more

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 expense for plane travel, hotel lodging and car rentals by the escorting
parent. [Father’s] suggestion that the non-custodial parent be given an
“allowance” for travel expenses to be incurred as a set-off against
payment of weekly child support is appropriate and reasonable under
the circumstances.

Appellant’s Br. p. 25. With this in mind, the trial court entered a “zero support

order,” explaining that “[Mother] shall not be required to pay weekly child

support to [Father] for the reason that [Mother] will be incurring significant

travel expenses in exercising extended parenting time with [Daughter] . . . .” Id.

at 26. Thus, although Mother is correct that she will incur expenses as a result

of the trial court’s decision, the trial court clearly dealt with this problem in a

just and reasonable manner.

[20] We decline to entertain any more of Mother’s requests to reweigh the evidence.

The trial court’s findings are supported by substantial evidence in the record,

and, even were Mother able to show that one of the trial court’s findings lacked

sufficient support, no one factor is determinative when it comes to child

custody. Such judgments “typically turn on essentially factual determinations

and will be set aside if only when they are clearly erroneous.” Baxendale, 878

N.E.2d at 1257. That is certainly not the case here. The trial court’s conclusion

that Daughter’s interests would be best served by Father being granted primary

physical custody is certainly supported by substantial evidence. In the end, the

trial court noted that it had reason to believe that, despite the distance, this

family relationship showed promise going forward:

[Mother] and [Father’s] communication and co-parenting skills have
improved since the divorce was finalized, barring some minor hiccups
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 along the way. [Mother] and [Father] have done their best to keep
open the lines of communication between [Daughter] and the non-
custodial parent when [Daughter] was in the primary physical custody,
again—barring some minor hiccups along the way. [Mother] and
[Father] should be able to co-parent [Daughter] going forward, so long
as they continue to keep open the lines of communication between
them, and close family members, and so long as they continue to be
respectful of each other’s role as a parent of [Daughter]. [Daughter’s]
best interests come first, always.

Appellant’s Br. p. 25.

[21] To be sure, the trial court has made a difficult decision in this case. However,

its order displays a breadth and depth that has not only assisted our review, but

assured us that we would be foolish not to defer to its judgment. Simply put, it

is clear that the trial court has thought this one through.

[22] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

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