MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 24 2017, 5:52 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Nicholas J. Hursh Elizabeth A. Deckard
Shambaugh, Kast, Beck & Williams, Bloom Gates Shipman &
LLP Whiteleather, LLP
Fort Wayne, Indiana Columbia City, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jill I. Lane, August 24, 2017
Appellant-Defendant, Court of Appeals Case No.
92A03-1702-DR-399
v. Appeal from the Whitley Circuit
Court
Michael P. Lane, The Honorable Matthew
Appellee-Plaintiff. Rentschler, Judge
Trial Court Cause No.
92C01-1603-DR-123
Bradford, Judge.
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Case Summary
[1] Appellant-Petitioner Jill I. Lane (“Mother”) and Appellee-Respondent Michael
Lane (“Father”) are the parents of minor child G.M.R.L. Mother filed a notice
of intent to relocate from Indiana to Connecticut with G.M.R.L. in July of
2016. The trial court denied Mother’s request to relocate with the child
following an evidentiary hearing. Mother argues that the trial court’s findings
of fact, conclusions of law, and order are clearly erroneous. Upon review, we
conclude that the trial court did not clearly err in finding that relocation was not
in the child’s best interest. Accordingly, we affirm.
Facts and Procedural History
[2] Mother and Father were married on June 13, 2009. Mother and Father have
one child together, G.M.R.L., who was born on July 22, 2010. The couple
separated in January of 2016 and filed a petition for dissolution in March of
2016. On May 16, 2016, the trial court dissolved the parties’ marriage by
Decree of Dissolution approving the parties’ Settlement Agreement. Pursuant
to the order, Mother and Father received joint legal custody of G.M.R.L. with
Mother being the primary custodial parent. Father received parenting time
with G.M.R.L. pursuant to the Indiana Parenting Time Guidelines.
[3] On July 15, 2016, Mother filed a notice of intent to relocate to Winsted,
Connecticut. Father filed his objection to Mother’s relocation request, an
emergency request for a temporary restraining order, and a motion for
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modification of custody on July 19, 2016. That same day, the trial court
entered a temporary restraining order restraining the relocation of G.M.R.L.
and set the matter for hearing on August 3, 2016. On August 1, 2016, the
parties filed a joint stipulation to vacate the August 3, 2016, hearing and reset
the hearing for November 9, 2016. On November 9, 2016, the trial court
rescheduled the hearing to January 11, 2017.
[4] On January 11, 2017, a hearing was held on all pending motions. Mother filed
a trial brief in support of her position, and Father filed a motion for findings of
fact and conclusions of law. At the conclusion of the hearing, the trial court
ordered the parties to submit a proposed order regarding findings of fact and
conclusions of law.
[5] On January 27, 2017, the trial court issued its order with findings of fact and
conclusions of law on Mother’s petition to relocate. The order included the
following findings of fact:
4. Mother seeks to relocate to Connecticut so she can join her
fiancé, Jeffery Walker. Mother also cites increased living space
and better financial opportunities in Connecticut as reasons for
the requested relocation.
5. Mother and Mr. Walker met on-line in January 2016 while
playing a computer game. They met in person for the first time
in April 2016, and were engaged in June 2016. Mother and Mr.
Walker have a tentative wedding date in, June 2017.
6. Mother and [G.M.R.L.] live alone in their current home which
has, at times, housed as many as three (3) other people living
with Mother and [G.M.R.L.].
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7. Mother has not undertaken any efforts to look for homes with
more living space in Whitley County, or the surrounding area.
8. Mother has obtained a position with Northwest CT Realty in
Connecticut and has been promised commission of 65% at this
new job compared to 60% with her current employer, Orizon
Real Estate in Columbia City, Indiana. Because the cost of living
is higher in Connecticut, home prices are higher there than in
Columbia City, Indiana. Mother speculates that she will have a
higher income in Connecticut.
9. Mother has no client base in Connecticut and no ties to the
area excepting Mr. Walker. Mother presented no evidence that
she has sought or been unable to find better employment terms in
Indiana.
10. Mr. Walker lives in Winsted, Connecticut and is employed as
an electrician with Horton Electrical Services, LLC in Canton,
Connecticut. He is a life-long Connecticut resident.
11. Mr. Walker is opening his home to Mother and [G.M.R.L.].
The home is sufficiently spacious to accommodate Mother and
[G.M.R.L.]. Mother considers Mr. Walker’s home an upgrade
from her Columbia City home.
12. Mr. Walker has no minor children in Connecticut and
testified that he will not relocate to Indiana because he expects an
accompanying pay decrease. Mr. Walker’s gross income was
$58,747.28 in 2015. After brief inquiry into Indiana job
prospects, Mr. Walker remains under the impression that he
would receive an inferior salary for an Indiana job similar to his
job in Connecticut.
13. Mother and [G.M.R.L.] have no family in Connecticut, but
have become acquainted with some of Mr. Walker’s Connecticut
friends.
14. Mother testified that she will not relocate if the Court does
not permit [G.M.R.L.] to relocate. There is uncertainty about
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the logistics of Mother and Mr. Walker’s relationship if Mother
does not move to Connecticut.
15. [G.M.R.L.] is presently enrolled in first grade at Little Turtle
Elementary School in Columbia City, Indiana and is doing well
in school.
16. [G.M.R.L.] has special needs. He has been diagnosed with
Severe Receptive Delay, Severe Expressive Language Delay, and
Autism Spectrum Disorder. Both Mother and Father are
cognizant of these needs and provide loving and appropriate
care. [G.M.R.L.] participated in services with First Steps and
Functional Oral and Motor Feeding Concepts LLC in Fort
Wayne in the past. He is not receiving services at this time.
Father has taken steps to have [G.M.R.L.] evaluated with
Hopebridge in Fort Wayne, Indiana.
17. Winsted, Connecticut is over 700 miles and an approximate
11 hour drive from Columbia City, Indiana.
18. Father opposes [G.M.R.L.’s] relocation because he would
lose regular contact with him, as would both sets of
grandparents, and other relatives on both sides of the family.
Mother’s family and Father’s family reside primarily in Indiana.
[G.M.R.L.’s] half-brother is attending college at Trine
University, in Indiana. Father has the ability and desire to have
primary physical custody of [G.M.R.L.] if [G.M.R.L.’s]
relocation to Connecticut is the alternative.
19. Father will experience hardship and expense to exercise
parenting time with [G.M.R.L.] should relocation be granted.
Mother proposed that Father exercise parenting time with
[G.M.R.L.] for approximately seven weeks each summer, one
week of parenting time each Christmas Break, and every Spring
Break, as well as one weekend every quarter. Mother has
requested that Mother and Father share transportation costs
equally for all parenting time with Father, except the one
weekend per quarter for which Mother will be responsible.
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20. Mother’s plan would cause [G.M.R.L.] and his Father and
the rest of [G.M.R.L.’s] Indiana family to be physically apart for
lengthy stretches of time. Skype or Facetime contact is possible
during these absences, but is not a substitute for physical
presence.
21. Father would be required to incur considerable costs in
providing for any of the transportation expenses to exercise his
parenting time with [G.M.R.L.].
22. Father currently resides with his mother ([G.M.R.L.’s]
grandmother), Rachel Lane. Rachel assists Father in providing
care for [G.M.R.L.], and has cared for [G.M.R.L.] when Mother
had work obligations when [G.M.R.L.] was in her care.
23. Father’s family members testified that the family consistently
spends time together throughout the year, with [G.M.R.L.]
spending time with his Father’s side of the family approximately
twice per month, and not just during the summer and holidays.
In contrast, Mother’s parents travel and would see [G.M.R.L.]
just as frequently if he were based in Connecticut or Indiana.
Appellant’s App. Vol II. pp. 27-29. The trial court denied Mother’s
motion to relocate G.M.R.L. to Winsted, Connecticut, ordered the
parties to continue with joint legal custody, did not modify Father’s
parenting time with G.M.R.L., and did not award either party attorney
fees.
Discussion and Decision
[6] Mother argues that the trial court’s findings of fact, conclusions of law, and
order were clearly erroneous and not supported by the evidence. We note at
the outset that because there was a request for the trial court to enter findings of
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fact and conclusions of law, we must determine whether the trial court’s
findings are sufficient to support the judgment. Breeden v. Breeden, 678 N.E.2d
423, 425 (Ind. Ct. App. 1997).
In reviewing the judgment, we must first determine whether the
evidence supports the findings and second, whether the findings
support the judgment. The judgment will be reversed only when
clearly erroneous, i.e., when the judgment is unsupported by the
findings of fact and conclusions entered on the findings.
Findings of fact are clearly erroneous when the record lacks any
evidence or reasonable inferences from the evidence to support
them. To determine whether the findings or judgment are clearly
erroneous, we consider only the evidence favorable to the
judgment and all reasonable inferences flowing therefrom, and
we will not reweigh the evidence or assess witness credibility.
Id. (citations omitted).
[7] “In addition [...], our supreme court has expressed a ‘preference for granting
latitude and deference to our trial judges in family law matters.’” In re Paternity
of Ba.S., 911 N.E.2d 1252, 1254 (Ind. Ct. App. 2009) (quoting In re Marriage of
Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). “Our supreme court
[emphasized] this principle, stating that we afford such deference because of
trial judges’ ‘unique, direct interactions with the parties face-to-face.’” H.H. v.
A.A., 3 N.E.3d 30, 34 (Ind. Ct. App. 2014) (quoting Best v. Best, 941 N.E.2d 499,
502 (Ind.2011)). “Thus enabled to assess credibility and character through both
factual testimony and intuitive discernment, our trial judges are in a superior
position to ascertain information and apply common sense, particularly in the
determination of the best interests of the involved children.” Id. Consequently,
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we “will not substitute our own judgment if any evidence or legitimate
inferences support the trial court’s judgment. The concern for finality in custody
matters reinforces this doctrine.” Baxendale v. Raich, 878 N.E.2d 1252, 1257-58
(Ind. 2008).
I. Denial of Mother’s Request to Relocate
[8] Pursuant to Indiana Code section 31-17-2.2-1(a),
[a] relocating individual must file a notice of the intent to move
with the clerk of the court that: (1) issued the custody order or
parenting time order; or (2) ... has jurisdiction over the legal
proceedings concerning the custody of or parenting time with a
child; and send a copy of the notice to any nonrelocating
individual.
A nonrelocating parent may object to relocation in either of two
ways: by filing a motion to modify the custody order or by filing,
within sixty days of receipt of the notice, a motion to prevent
relocation of the child. Baxendale, 878 N.E.2d at 1256 n.5; see
Ind. Code § 31-17-2.2-5(a) (regarding motion to prevent
relocation). Upon request of either party, the trial court shall hold
a full evidentiary hearing to grant or deny a motion to prevent
relocation of the child. Ind. Code § 31-17-2.2-5(b). “The
relocating individual has the burden of proof that the proposed
relocation is made in good faith and for a legitimate reason.”
Ind. Code § 31-17-2.2-5(c). If the relocating parent meets that
burden, “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).
T.L. v. J.L., 950 N.E.2d 779, 783 (Ind. Ct. App. 2011) (quoting M.S. v.
C.S., 938 N.E.2d 278, 281-82 (Ind. Ct. App. 2010).
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[9] In determining whether to permit a relocation, the trial court shall take into
account the following:
(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating
individual to exercise parenting time....
(3) The feasibility of preserving the relationship between the
nonrelocating individual and the child through suitable parenting
time ... 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. “The ‘other factors affecting the best interest of the
child’ include, by implication, the factors set forth for custody determinations
and modifications under Indiana Code section 31-17-2-8.” T.L., 950 N.E.2d at
785 (citing Baxendale, 878 N.E.2d at 1257). These factors 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
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fourteen (14) years of age; (4) the interaction and
interrelationship of the child with the child’s parent or parents,
the child’s sibling, and any other person who may significantly
affect the child’s best interests; (5) the child’s adjustment to the
child’s home, school, and community; (6) the mental and
physical health of all individuals involved; (7) evidence of a
pattern of domestic or family violence by either parent; and (8)
evidence that the child has been cared for by a de facto custodian.
Ind. Code § 31-17-2-8.
[10] Mother claims that the trial court erroneously determined that she failed to
prove that her relocation request was made for a legitimate reason. Specifically,
Mother challenges the trial court’s determination that her desire to move to
Connecticut to join her fiancé, move into his home, and work at a realty
company did not constitute legitimate reasons for relocation of Mother and
G.M.R.L. from Indiana to Connecticut.
[11] Even assuming, arguendo, that Mother did have a legitimate reason for
requesting to relocate with G.M.R.L., it was not clearly erroneous for the trial
court to conclude that relocation was not in the child’s best interest. With
regards to the best interest of the child, the trial court found that:
4. Even if this Court were to declare that Mother was relocating
for a reason that had legitimacy, the court would be constrained
to act in the best interests of the child. It is in [G.M.R.L.]’s best
interest to remain in Indiana where he has regular contact with
both parents and his extended family, and to continue attending
Little Turtle Elementary School where he is doing well.
Appellant’s App. p. 31. In addition,
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16. [G.M.R.L.] has special needs. He has been diagnosed with
Severe Receptive Delay, Severe Expressive Language Delay, and
Autism Spectrum Disorder. Both Mother and Father are
cognizant of these needs and provide loving and appropriate
care. [G.M.R.L.] participated in services with First Steps and
Functional Oral and Motor Feeding Concepts LLC in Fort
Wayne in the past. He is not receiving services at this time.
Father has taken steps to have [G.M.R.L.] evaluated with
Hopebridge in Fort Wayne, Indiana.
Appellant’s App. p. 28. G.M.R.L. has also received services and testing from
Riley Children’s hospital in Indianapolis, Indiana. Tr. p. 17. Furthermore,
due to his special needs, routine and structure are important. Tr. p. 20. “He
doesn’t like it when things are . . . changed too much.” Tr. p. 20. According to
Mother, “it’s definitely a big priority to make sure he knows [what is] going on
and to keep it the same for him.” Tr. p. 20. Given G.M.R.L.’s special needs,
his relationship with Father and Father’s family, his need for routine and
structure, his school, and his medical providers, the trial court was not clearly
erroneous when it concluded that remaining in Indiana was in G.M.R.L.’s best
interest. Mother’s claim that the trial court should have given more weight to
other various facts is merely an invitation to reweigh the evidence which we
will not do. See Breeden v. Breeden, 678 N.E.2d at 425.
[12] The judgment of the trial court is affirmed.
Brown, J., and Pyle, J., concur.
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