MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
May 25 2017, 9:22 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the purpose CLERK
Indiana Supreme Court
of establishing the defense of res judicata, collateral Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Thomas B. O’Farrell
McClure | O’Farrell
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lynette (Pierce) Loud, May 25, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A02-1611-DR-2683
v. Appeal from the Marion Superior
Court
Yair Martinez-Ruiz, The Hon. James B. Osborn, Judge
The Hon. Marshelle Dawkins
Appellee-Respondent.
Broadwell, Magistrate
Trial Court Cause No.
49D14-1503-DR-8631
Bradford, Judge.
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Case Summary
[1] Lynette Pierce (now Lynette Loud, hereinafter “Mother”) and Yair Martinez-
Ruiz (“Father”) were married on May 13, 2011, and separated in January of
2015. As of May 31, 2016, the two children born of the marriage were five and
two years old, and Mother had primary physical and legal custody. In April of
2016, Mother filed a notice of intent to relocate with the Children to Texas with
a new boyfriend she intended to marry.
[2] In April and May of 2016, the trial court held a final hearing on the dissolution
and Mother’s relocation request. Following the hearing, the trial court issued
its order, which dissolved the parties’ marriage and denied Mother’s relocation
request. The magistrate who presided over the dissolution signed the
dissolution order and the subsequent denial of Mother’s motion to correct error,
but a trial judge did not. Mother contends that the dissolution order is invalid
because it was not signed by a trial judge and the trial court abused its
discretion in denying her relocation request and in determining the parties’
childcare expenses. Because we conclude that Mother has waived any
challenge to the authority of the magistrate to issue the dissolution order but
that the trial court abused its discretion in determining child support, we affirm
in part, reverse in part, and remand for further proceedings.
Facts and Procedural History
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[3] Mother and Father were married on May 13, 2011, and separated in January of
2015. On March 17, 2015, Mother petitioned for dissolution of her marriage
with Father. The Children were born in November of 2010 and December of
2013. On July 21, 2015, Mother petitioned for an order for protection, which
the trial court granted ex parte the next day. On September 17, 2015, the parties
agreed to a preliminary order that addressed the protective order and
preliminary dissolution issues. The preliminary order provided, in part, that (1)
Mother and Father would share custody of the Children with Mother having
final decision-making authority, (2) Father would have parenting time each
weekend except for the first weekend of each month and with one of the
Children each Wednesday while that child was in preschool, (3) parenting-time
exchanges would occur at the Jordan YMCA child watch in such a way that
the parents would not meet, and (4) Father would pay $65.00 per week in child
support and $75.00 per month for preschool tuition.
[4] Following an incident involving the parties and Mother’s boyfriend in the
parking lot of the Jordan YMCA on October 24, 2015, Father did not exercise
parenting time until at least February 17, 2016. At a hearing on February 24,
2016, the trial court ordered that Father’s parenting time be resumed pursuant
to the preliminary order, with the exception of the Wednesday visitation with
one of the Children, which was eliminated due to Father’s work schedule. Also
on that date, Mother moved for a final dissolution hearing, which the trial court
set for April 19, 2016. On April 14, 2016, Wife filed a notice of intent to move
residence, stating that she planned to move to Fort Hood, Texas, with the
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Children in July of 2016. On April 19, 2016, Father filed his objection to
Mother’s relocation request and a motion for modification of custody.
[5] On April 19 and May 31, 2016, the trial court held hearings addressing the
dissolution, Mother’s petition to relocate, and Father’s motion for modification
of custody. At the hearing on April 19, 2016, the parties stipulated, inter alia,
that Mother would have primary physical custody of the Children subject to
Father’s parenting time, all exchanges would continue to occur at the Jordan
YMCA child watch with the assistance of a mutually-acceptable third party,
and the protective order would stay in place but that Father could contact the
Children through Mother.
[6] Also on April 19, 2016, Mother testified that it was her intent to marry her
boyfriend, who was in the Army and stationed at Fort Hood, after her divorce
from Father became final. On May 31, 2016, Mother testified that she had
worked at the Cheesecake Factory for ten years in Indianapolis but that she
would resume her lapsed Amway1 business if she relocated to Texas. Father
testified that his gross income was approximately $400.00 per week and that he
could not afford to travel to Texas to see the Children.
1
Mother testified that Amway is a “multilevel marketing company” and that her business would involve
selling everything from “skin care to sport nutrition to, um, household cleaners … all from the comfort of
[her] living room.” Tr. II pp. 101-02.
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[7] On August 29, 2016, the trial court issued its dissolution order and ruling on
Mother’s petition to relocate. The order included the following findings of fact:
21. Wife is requesting leave of Court to relocate to Texas with
the children. Husband objects to the relocation of the
children and requests the Court to modify custody in the
event of Wife’s move.
22. Wife’s reason for her relocation is to move in with her
romantic companion. Wife testified her intent is to re-
marry upon her divorce from Husband. Wife’s romantic
companion is in the military and currently stationed at Ft.
Hood, Texas; Wife acknowledge[s] Wife’s romantic
companion could be ordered to relocate at any time.
23. Wife testified that Wife intends to quit her job of ten years
in order to move to Texas and join her romantic
companion, then operate an Amway multi-level marketing
business from her home. Wife and the children do not
have any family members in the area where Wife wants to
relocate in Texas. Wife stated she would not move to
Texas if the children were not allowed to relocate with her.
24. Husband objects to Wife relocating with the children.
Husband asserted concerns about the children’s education,
lack of family members in the area, potential lack of stable
housing, an inability of the children to travel without
adults to accompany them, Husband’s inability to travel
due to potential restrictions on his ability to leave the state
and cost associated with travel to Texas, or midway
between Indiana and Texas.
25. Wife’s average gross weekly income is $569.
26. Husband’s gross weekly income is $520.
27. Wife’s weekly work-related childcare expense is $90.
Husband’s weekly work-related childcare expense is $60.
28. Wife claimed both children on her 2014 federal and state
income taxes and her 2015 federal and state income taxes.
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Husband asserts Husband was entitled to claim at least
one child on his 2015 income taxes. Wife asserts Husband
was not entitled to claim either children due to Husband’s
child support arrearage. The Court finds that Husband
had a child support arrearage at the time the children were
claimed for the 2015 taxes.
29. Wife and Husband dispute whether Husband owes Wife
money for Husband’s cell phone. The Court does not find
that Husband owes Wife any money for the Sprint cell
phone bill.
Appellant’s App. Vol. II pp. 14-15.
[8] The trial court’s order included the following conclusions:
4. The parties have no property to divide.
5. With respect to debts asserted by each party, the Court
does not find Husband liable for Wife’s cell phone bill and
the Court does not find Wife liable for Husband’s tax
obligation.
6. The parties shall share joint legal custody, equally sharing
in major decision-making authority as to the parties’ minor
children.
7. The parties are not required to communicate by
exchanging a calendar; however, communication
regarding the children should occur through nonverbal
approaches, such as texting, or-preferably-email. Both
parties are required to make the other party aware of the
minor children’s scheduled activities.
8. Wife shall have primary physical custody and Husband
shall have parenting time according to the Indiana
Parenting Time Guidelines, which shall apply to the
parties in all respects, but for Husband’s parenting time
being:
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a. The second and third weekend of each month,
Father shall have parenting time from noon
Saturday until 9:00 a.m. Monday; the fourth
weekend of each month, from noon Saturday until
6:00 p.m. on Sunday; in the event of a fifth
weekend, from noon on Saturday until 6:00 p.m. on
Sunday.
b. All exchanges of the minor children are to take
place at the Jordan YMCA child watch. The party
with the children shall drop them off at least fifteen
minutes before the exchange time. On Sunday
evenings, Father is to exchange the children with
another adult of whom both parties approve. The
Court discourages romantic companions of the
parties from participating in exchanges.
9. The Court does not approve the relocation of the minor
children from Indiana. The Court finds that such
relocation would not be for legitimate reasons and further
would not be in the best interests of the parties’ minor
children. If Wife chooses to relocate to Texas, Husband
shall have primary physical custody, and Wife shall have
Indiana Guideline parenting time with the minor children
where distance is a major factor.
10. Husband shall pay child support in the amount of
$54/week through INSCCU via Income Withholding
Order. Child support payments may not be made in cash
or via “in-kind” exchanges. Wife shall continue to pay the
babysitter during her work shifts and Husband shall pay
the babysitter during his work shifts. Wife shall pay the
first $758.16 annually in uninsured medical expenses for
the children with any remaining accounts paid 48% by
Husband and 52% by Wife per the attached CSOW and
the “6% Rule”. Husband shall pay $75 per month towards
[the oldest child’s] school tuition.
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11. Beginning with 2016 State and Federal Taxes, Husband
shall be allowed to claim [the younger child] each year
going forward; beginning with 2016 Federal and State
Taxes, Wife shall be allowed to claim [the older child]
each year going forward.
12. The marriage of the parties is dissolved and they are each
returned to the status of unmarried persons.
Appellant’s App. Vol. II pp. 16-18. The order was signed by Marion Superior
Court Magistrate Marshelle Dawkins Broadwell but was not signed by a judge.
On October 19, 2016, the order denying Mother’s motion to correct error was
again signed by Magistrate Broadwell but not by a judge. Mother did not
challenge the authority of Magistrate Broadwell to issue the dissolution decree
in her motion to correct error.
Discussion and Decision
Standard of Review
[9] In the present case, Father has not submitted a Brief of Appellee. As a result,
“[i]nstead of imposing upon this court the burden of controverting arguments
advanced for reversal, [we] have long applied a less stringent standard of review
with respect to showings of reversible error when the appellee fails to file a
brief.” Johnson Cty. Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991
(Ind. Ct. App. 1985). Birth Mother need only prove prima facie error to win
reversal. Id. (citing Ind. State Bd. Of Health v. Lakeland Disposal Serv., Inc., 461
N.E.2d 1145, 1145 n.1 (Ind. Ct. App. 1984)). “In this context, ‘prima facie’
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means at first sight, on first appearance, or on the face of it.” Id. (quoting
Harrington v. Harrington, 142 Ind. App. 87, 88, 233 N.E.2d 189, 191 (1968)).
[10] In this case, the trial court entered findings of fact and conclusions thereon.
Our review of findings and conclusions in such cases is well settled:
Pursuant to Indiana Trial Rule 52(A), we do 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 witnesses.” Where, as here, the findings and
conclusions are entered sua sponte, “the specific 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.” Sexton v. Sedlak, 946
N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.
Miller v. Carpenter, 965 N.E.2d 104, 108–09 (Ind. Ct. App. 2012).
I. Authority of the Magistrate to
Issue the Dissolution Order
[11] Mother contends that the dissolution decree and order on relocation and
custody issues, as well as the trial court’s denial of her motion to correct error,
must be set aside because there are no indications that a judge approved them.
Indiana Code section 33-23-5-5 provides that
A magistrate may do any of the following:
(1) Administer an oath or affirmation required by law.
(2) Solemnize a marriage.
(3) Take and certify an affidavit or deposition.
(4) Order that a subpoena be issued in a matter pending before
the court.
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(5) Compel the attendance of a witness.
(6) Punish contempt.
(7) Issue a warrant.
(8) Set bail.
(9) Enforce court rules.
(10) Conduct a preliminary, an initial, an omnibus, or other
pretrial hearing.
(11) Conduct an evidentiary hearing or trial.
(12) Receive a jury’s verdict.
(13) Verify a certificate for the authentication of records of a
proceeding conducted by the magistrate.
(14) Enter a final order, conduct a sentencing hearing, and
impose a sentence on a person convicted of a criminal offense as
described in section 9 of this chapter.
(15) Enter a final order or judgment in any proceeding involving
matters specified in IC 33-29-2-4 (jurisdiction of small claims
docket) or IC 34-26-5 (protective orders to prevent domestic or
family violence).
(16) Approve and accept criminal plea agreements.
(17) Approve agreed settlements concerning civil matters.
(18) Approve:
(A) decrees of dissolution;
(B) settlement agreements; and
(C) any other agreements;
of the parties in domestic relations actions or paternity actions.
[12] Moreover, Indiana Code section 33-23-5-8 provides that, subject to exceptions
not implicated in this case, “a magistrate … does not have the power of judicial
mandate [and] may not enter a final appealable order unless sitting as a judge
pro tempore or a special judge.” Finally, Indiana Code section 33-23-5-9
provides that, unless following a criminal trial or guilty plea hearing, “a
magistrate shall report findings in an evidentiary hearing, a trial, or a jury’s
verdict to the court. The court shall enter the final order.”
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[13] As the Indiana Supreme Court has explained:
Magistrates may enter final orders in criminal cases, I.C. §§ 33-
23-5-5(14), -9(b), but otherwise “may not enter a final appealable
order unless sitting as a judge pro tempore or a special judge.”
I.C. § 33-23-5-8(2). Instead, they may only “report findings,”
while “[t]he court shall enter the final order.” I.C. § 33-23-5-9(a).
In re Adoption I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015).
[14] Mother is correct that, pursuant to rather clear statutory authority, the
dissolution decree and order on relocation and custody issues, and the trial
court’s denial of her motion to correct error, should have been approved by a
trial judge. That said, as Mother concedes, she did not object on this ground in
the trial court, and this failure decides the issue. As the Indiana Supreme Court
has explained, “[t]he proper inquiry for a reviewing court when faced with a
challenge to the authority and jurisdiction of a court officer to enter a final
appealable order is first to ascertain whether the challenge was properly made
in the trial court so as to preserve the issue for appeal.” Floyd v. State, 650
N.E.2d 28, 32 (Ind. 1994). The Floyd court continued:
[I]t has been the long-standing policy of this court to view the
authority of the officer appointed to try a case not as affecting the
jurisdiction of the court. Therefore, the failure of a party to
object at trial to the authority of a court officer to enter a final
appealable order waives the issue for appeal. We conclude that it
is improper for a reviewing court to dismiss an appeal on these
grounds where no showing has been made that the issue was
properly preserved. Instead, the reviewing court should deny
relief on grounds of waiver.
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Id. Even though the dissolution order was not signed by a judge, Mother did
not raise the issue in her motion to correct error (in which event, one imagines,
the deficiency would almost certainly have been quickly remedied) and so has
waived it for our consideration. Much as the Indiana Supreme Court did
recently, however, “[w]e trust the court will observe this necessity on remand.”
In re Adoption I.B., 32 N.E.3d at 1173 n.6.
II. Relocation
[15] Mother contends that the trial court abused its discretion in denying her request
to relocate with the Children to Fort Hood, Texas. We review custody
modifications for an abuse of discretion. In re Paternity of J.J., 911 N.E.2d 725,
728 (Ind. Ct. App. 2009), trans. denied. The Indiana Supreme Court “has
expressed a preference for granting latitude and deference to our trial judges in
family law matters … because of trial judges’ unique, direct interactions with
the parties face-to-face.” T.L. v. J.L., 950 N.E.2d 779, 784 (Ind. Ct. App. 2011)
(citations and quotations omitted). We do not substitute our judgment for that
of the trial court if evidence and legitimate inferences therefrom support the trial
court’s judgment, which serves the interests of finality in custody matters.
Baxendale v. Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008).
[16] When a parent files a notice of intent to relocate, the nonrelocating parent may
object by moving to modify custody or to prevent the child’s relocation. Ind.
Code §§ 31-17-2.2-1(b); 31-17-2.2-5(a). When this objection is made, “[t]he
relocating individual has the burden of proof that the proposed relocation is
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made in good faith and for a legitimate reason.” Ind. Code § 31-17-2.2-5(c). If
the relocating parent shows good faith and a legitimate reason, “the burden
shifts to the nonrelocating parent to show that the proposed relocation is not in
the best interest of the child.” Ind. Code § 31-17-2.2-5(d).
(b) Upon [the filing of a notice of intent to move] 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. The court shall take into
account the following in determining whether to modify a
custody order, parenting time order, grandparent visitation order,
or child support order:
(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.
Ind. Code § 31-17-2.2-1(b).
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[17] “Other factors affecting the best interest of the child[,]” Ind. Code § 31-17-2.2-
1(b)(6), are the factors provided by our legislature in the Indiana Code, and
include:
(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.
Ind. Code § 31-17-2-8.
[18] Our supreme court has held that, even where there has not been a substantial
change in one or more of the statutory factors affecting the best interests of the
child set forth in Section 31-17-2-8, a change in custody may be ordered due to
relocation of a parent. In re Paternity of J.J., 911 N.E.2d 725, 729 (Ind. Ct. App.
2009 )(citing Baxendale, 878 N.E.2d at 1256-57). A trial court must, however,
consider all of the statutory factors enumerated in the relocation statute codified
at Subsection 31-17-2.2-1(b). Id. at 731. Moreover, “[o]n appeal it is not
enough that the evidence might support some other conclusion, but it must
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positively require the conclusion contended for by appellant before there is a
basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (citations and
quotation marks omitted).
[19] We conclude that the evidence presented in this case does not positively require
reversal of the trial court’s denial of Mother’s request to relocate with the
Children. As an initial matter, the trial court concluded that Mother did not
carry her burden of showing a legitimate reason for relocation and that she was
acting in good faith. We conclude, however, that relocation for the purpose of
creating a family with a current or future spouse is generally sufficient to
establish a legitimate reason for relocation and good faith, and is in this case.
See In re the Paternity of X.A.S., 928 N.E.2d 222, 229 (Ind. Ct. App. 2010)
(explaining that a father who had recently married a member of the U.S. Navy
whose ship was docked in California and who wished to relocate to California
to live with his spouse presented a good faith and legitimate reason for the
relocation), trans. denied. That said, “‘[t]he Court of Appeals may affirm the
trial court’s ruling if it is sustainable on any legal basis in the record, even
though it was not the reason enunciated by the trial court.’” Thomas v. Thomas,
923 N.E.2d 465, 470-71 (Ind. Ct. App. 2010) (quoting Moore v. State, 839
N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied.).
[20] The trial court heard and considered evidence regarding the distance involved
in the proposed relocation and the and hardship and feasibility of maintaining
parenting time. The trial court noted that Mother intended to relocate with the
Children to Texas, which Mother testified would be an approximately
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seventeen- to eighteen-hour drive from Indianapolis. Mother also proposed
Memphis, Tennessee, as an exchange point, which would still be an eight-hour
drive for Father. Father testified that, due to a pending criminal charge, he was
not certain that he could even leave the State of Indiana and that, even if he
could leave, visitation with the Children in Texas would be “extremely hard”
and “difficult” and that he would not be able to afford to visit them. Tr. Vol. II
p. 110.
[21] Moreover, although not specifically cited by the trial court, the record contains
evidence that Mother has, at times, thwarted Father’s visitation with the
Children. Father testified that even without full custody, “she does whatever
she wants, then if she has [full custody], she’s going to disappear from the
world.” Tr. Vol. II p. 66. Father testified that Mother had kept the Children
from him “for months” and that, in the event of relocation, “[s]he’s not going to
follow the rules.” Tr. Vol. II p. 66.
[22] As for Mother’s reasons for relocation, Mother testified that she intended to
marry her boyfriend upon her divorce from Father and relocate with him to
near Fort Hood, Texas, where he was stationed. Mother acknowledged,
however, that her boyfriend was a “career soldier” who could be relocated at
any time. Tr. Vol. II p. 101. Although Mother testified that she has family
nearby Fort Hood, she testified that her sister, in fact, lived six hours away in
Arkansas, which supports the trial court’s finding that Wife and the Children
had no family members in the area. Father also objected to the move, citing
uncertainties regarding the Children’s education. Mother testified that she did
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not know the name of the school the older child would attend, nor had she
visited it. The trial court also noted that Mother would be leaving a job she had
had for ten years if she relocated to Texas and would rely, in part, on her
dormant Amway business for income. Mother testified that the Children have
a pediatrician that Mother “just really like[s]” in Indiana but that she does not
know who their doctor would be in Texas. Tr. Vol. II p. 96.
[23] Under the circumstances, we cannot say that the record positively requires
reversal of the trial court’s disposition. The trial court heard evidence that
relocation would be a significant hardship on Father and evidence suggesting a
distinct possibility that Mother might be somewhat less than fully cooperative
with visitation. The trial court was permitted to conclude that there were
questions about the long-term stability of Mother’s situation in Texas, both with
regard to the possibility of further relocation and Mother’s work situation.
Mother points to evidence that would tend to support the granting of her
request to relocation with the Children. This, however, is an invitation to
reweigh the evidence, which we will not do. See Baxendale, 878 N.E.2d at 1257-
58.
III. Child Support
[24] A trial court’s calculation of child support is presumptively valid.
Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind.2015). We review
decisions regarding child support for an abuse of discretion.
[Lovold v. Ellis, 988 N.E.2d 1144, 1149-50 (Ind. Ct. App. 2013)].
An abuse of discretion occurs when a trial court’s decision is
against the logic and effect of the facts and circumstances before
the court or if the court has misinterpreted the law. Id. at 1150.
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When reviewing a decision for an abuse of discretion, we
consider only the evidence and reasonable inferences favorable to
the judgment. Id.
Mitten v. Mitten, 44 N.E.3d 695, 699 (Ind. Ct. App. 2015).
[25] Mother contends that the trial court abused its discretion in calculating child
support after finding that her weekly child-care expense is $90.00 and that
Father’s is $60.00. We agree with Mother that this finding is unsupported by
the evidence submitted to trial court. On April 19, Mother testified that the
Children’s babysitter charged $30.00 per shift. On May 31, 2016, however,
Mother testified that the Children’s babysitter had recently increased her rate to
$40.00 per shift, and the trial court’s calculations are apparently based on the
$30.00 rate. Consequently, we remand with instructions to recalculate the
parties’ childcare obligations accordingly.
Conclusion
[26] We conclude that Mother waived any challenge she might have had to the
magistrate’s authority to issue the dissolution decree by failing to object on that
ground in the trial court. We further conclude that the trial court did not abuse
its discretion in denying Mother’s request to relocate to Texas with the
Children. Finally, we reverse the trial court’s order regarding child support, as
it was based, in part, on findings regarding childcare costs that are not
supported by evidence in the record.
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[27] We affirm in part, reverse in part, and remand for further proceedings
consistent with this decision.
Baker, J., and Riley, J., concur.
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Lynette (Pierce) Loud v. Yair Martinez-Ruiz (mem. dec.)
Combined Opinion