C.Z. v. J.Z. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Aug 30 2017, 6:33 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Monty K. Woolsey Donna Jameson
Andrew R. Bloch Greenwood, Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

C.Z., August 30, 2017
Appellant-Defendant, Court of Appeals Case No.
41A04-1611-DR-2456
v. Appeal from the Johnson County
Circuit Court
J.Z., The Honorable K. Mark Lloyd,
Appellee-Plaintiff Judge
Trial Court Cause No.
41C01-1404-DR-245

Altice, Judge.

Case Summary

[1] C.Z. (Father) appeals the child custody order entered following the dissolution

of his marriage to J.Z. (Mother). On appeal, Father raises the following issues:

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 1. Did the trial court abuse its discretion in awarding primary
physical custody to Mother?

2. Did the trial court err in finding that Ind. Code § 31-17-2.2-1
(the Relocation Statute) did not apply?

Mother cross appeals, raising the following issue:

3. Did the trial court abuse its discretion in awarding joint legal
custody?

[2] We affirm.

Facts & Procedural History

[3] Mother and Father were married in 2010, and their daughter, C.Z. (Child), was

born in 2012. Father is a physician and Mother is a licensed speech and

language pathologist. During the marriage, the parties lived in Greenwood,

Indiana. In April 2014, when Child was one and a half years old, Mother filed

a petition for dissolution of marriage, and Mother and Child moved out of the

marital residence and into an apartment in Greenwood.

[4] The trial court entered a preliminary order on June 23, 2014, pursuant to which

Mother was awarded temporary primary physical custody and Father was

awarded parenting time. On December 16, 2014, the trial court entered a

partial decree of dissolution, but noted that issues relating to child custody

remained open.

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[5] On June 10, 2015, Mother filed a Notice of Intent to Relocate, in which she

indicated a desire to move with Child to Columbus, Indiana, which is

approximately thirty miles away from Mother’s Greenwood apartment.

Mother had lived in Columbus prior to the marriage and Mother’s twin sister

and her family continued to reside there. Mother had accepted a promotion to

the position of Program Director at one of her employer’s campuses in

Columbus. The position came with a significant pay increase and Mother’s

work week was increased from thirty to forty hours. Mother and Child

continued to reside at Mother’s apartment in Greenwood pending the trial

court’s final custody order, but Mother indicated that her employer would

require her to move to Columbus if she wished to keep her new position. There

were no similar positions available to Mother in Greenwood. Father objected

to Mother’s proposed relocation.

[6] A final hearing on all pending matters concluded on March 28, 2016. On July

28, 2016, the trial court entered its supplemental decree of dissolution, in which

it awarded primary physical custody to Mother and ordered the parties to share

joint legal custody. In its findings, the trial court noted that it was “not

convinced” that the Relocation Statute applied to initial custody determinations

like the one at issue here, but nevertheless found that Mother had a good faith

reason for relocating and that relocation was in Child’s best interest and would

have a minimal impact on parenting time. Appellant’s Appendix Vol. 2 at 14.

Father filed a motion to correct error, which was denied after a hearing. Father

now appeals. Additional facts will be provided as necessary.

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 Discussion & Decision

[7] Where, as here, a trial court enters special findings and conclusions sua sponte,

the specific findings and conclusions control only as to the issues they cover,

while a general judgment standard applies to any issue upon which the trial

court has not made findings. Tew v. Tew, 924 N.E.2d 1262, 1264 (Ind. Ct. App.

2010), trans. denied. We review the trial court’s specific findings and

conclusions using a two-tiered standard of review: first, we consider whether

the evidence supports the findings, and second, whether the findings support

the judgment. Id. at 1264-65. We will set aside the trial court’s findings and

conclusions only if they are clearly erroneous, that is, if the record contains no

facts or inferences supporting them. Id. at 1265. We will affirm a general

judgment on any theory supported by the evidence presented. Id. In reviewing

the findings and judgment, we will neither reweigh the evidence nor judge the

credibility of witnesses, and we will consider only the evidence most favorable

to the ruling. Id.

[8] Furthermore, “there is a well-established preference in Indiana ‘for granting

latitude and deference to our trial judges in family law matters.’” Steele-Giri v.

Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622

N.E.2d 178, 178 (Ind. 1993)). As our Supreme Court has explained:

Appellate deference to the determinations of our trial court
judges, especially in domestic relations matters, is warranted
because of their unique, direct interactions with the parties face-
to-face, often over an extended period of time. Thus enabled to
assess credibility and character through both factual testimony

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 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.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). It is not enough on appeal that the

evidence might support some other conclusion; rather, the evidence must

positively require the result sought by the appellant. D.C. v. J.A.C., 977 N.E.2d

951, 957 (Ind. 2012). Accordingly, we will not substitute our own judgment if

any evidence or legitimate inferences support the trial court’s judgment. Id.

1. Physical Custody

[9] Father argues that the trial court’s decision to award primary physical custody

to Mother was an abuse of discretion. In an initial custody determination, both

parents are presumed equally entitled to custody, and “[t]he court shall

determine custody and enter a custody order in accordance with the best

interests of the child.” I.C. § 31-17-2-8. See also Kondamuri v. Kondamuri, 852

N.E.2d 939, 945 (Ind. Ct. App. 2006). In determining the child’s best interests,

the trial court must consider all relevant factors, including specifically the

following:

(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.

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 (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.

(8) Evidence that the child has been cared for by a de facto
custodian . . . .

The trial court’s decisions on child custody are reviewed only for an abuse of

discretion. Sabo v. Sabo, 858 N.E.2d 1064, 1068 (Ind. Ct. App. 2006).

[10] Father concedes that the trial court’s findings are supported by the evidence, but

argues that the findings do not support the trial court’s decision to award

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 Mother primary physical custody. According to Father, the findings and record

compel a conclusion that he should have been awarded primary physical

custody or, “at a minimum,” an award of joint physical custody. Appellant’s

Brief at 22. Father’s arguments are nothing more than a request to reweigh the

evidence and substitute our judgment for that of the trial court, which we will

not do.1

[11] The trial court noted that Mother believed Father was a “good dad[.]”

Appellant’s Appendix at 13. The court found further that Father “either does not

feel the same about [Mother’s] parenting or is unwilling to acknowledge the

same” and that “[i]n either case, [Father’s] actions during the proceedings make

his perspective suspect[.]” Id. The court found that Father had “repeatedly

demonstrated his unwillingness and/or inability to cooperate with decision

making through co-parenting” and that “[d]uring the provisional period and

throughout numerous texts and emails with [Mother] regarding parenting time

with [Child], [Father] remain[ed] argumentative and abrasive.” Id. at 12. The

trial court further found that although Mother would ask for Father’s

participation and input regarding the parenting-time schedule, Father would not

contribute his thoughts or preferences in a meaningful manner. The court also

noted that Father claimed to be concerned for Child’s safety in Mother’s care,

1
Father’s arguments rely in large part on disputed evidence unfavorable to the trial court’s ruling, which we
will not consider. Father also misstates the record by asserting that Mother relocated during the pendency of
the custody proceedings. The record clearly establishes that Mother continued to reside at her Greenwood
apartment pending the trial court’s ruling.

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 but found those concerns to be “largely unsupported by the evidence or grossly

exaggerated.” Id.

[12] These findings support a conclusion that if Father had been awarded primary

physical custody, he would have been unlikely to effectively co-parent with

Mother and facilitate her relationship with Child. The trial court found that

Mother, on the other hand, had continued to attempt to work with Father to

facilitate his parenting time with Child despite his abrasive attitude and lack of

cooperation. Indeed, the record shows that Mother has exhibited

commendable flexibility and willingness to accommodate Father’s irregular

work schedule, and she has allowed him more time with Child than required by

the Indiana Parenting Time Guidelines. These findings are sufficient to support

the trial court’s conclusion that awarding primary physical custody to Mother

was in Child’s best interests.

2. Relocation

[13] Father next argues that the trial court erred as a matter of law by concluding

that the Relocation Statute was inapplicable to this case. Father has

mischaracterized the trial court’s order. Although the trial court expressed

doubt as to whether the Relocation Statute applied, it nevertheless found that

application of the Relocation Statute did not alter its ultimate custody decision.

Specifically, the trial court found as follows:

The Court notes that it is not convinced that the Relocation
Statute . . . applies in these circumstances. As there has, until
now, been no final custody order, it would appear that the
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 pertinent analysis is under the factors set forth in I.C. 31-17-2-8.
However, in this instance the conclusion of the analysis under
both statutes is the same as there is certainly a good faith reason
for [Mother] to relocate back to Columbus and such a relocation
is certainly in the child’s best interest, with minimal impact to
parenting time.

Appellant’s Appendix Vol. 2 at 14. See I.C. § 31-17-2.2-5 (providing that if a

relocating parent satisfies his or her burden of proving that the proposed

relocation is made in good faith and for a legitimate reason, the burden shifts to

the nonrelocating parent to prove that the proposed relocation is not in the

child’s best interest); I.C. § 31-17-2.2-1(b) (providing that a court considering a

relocation petition should consider, among other things, the distance involved,

the hardship and expense for the nonrelocating parent to exercise parenting

time, and the feasibility of preserving the relationship between the

nonrelocating parent and child through suitable parenting time).

[14] Thus, contrary to Father’s arguments on appeal, the trial court clearly

considered the Relocation Statute and performed the necessary analysis. The

trial court was not, as Father seems to suggest, required to make specific

findings on each of the factors set forth in the Relocation Statute. See H.H. v.

A.A., 3 N.E.3d 30, 36 (Ind. Ct. App. 2014) (explaining that when considering a

request to relocate, “while the trial court is to consider all relevant factors, [it] is

not necessarily required to make specific findings on each factor unless

requested to do so by the parties”). Father makes no attempt to challenge the

trial court’s findings that Mother’s proposed relocation was made in good faith

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 and for a legitimate purpose or its finding that the relocation was in Child’s best

interests, and we conclude that both findings were clearly supported by the

evidence. The trial court’s ruling on Mother’s petition to relocate was not an

abuse of discretion.

3. Joint Legal Custody

[15] On cross-appeal, Mother argues that the trial court abused its discretion in

awarding joint legal custody. I.C. § 31-17-2-13 provides that a court may award

joint legal custody if doing so is in the best interest of the child. In determining

whether an award of joint legal custody would be in the child’s best interest, the

court must “consider it a matter of primary, but not determinative, importance

that the persons awarded joint custody have agreed to an award of joint legal

custody.” I.C. § 31-17-2-15. The court must also consider the following

factors:

(1) the fitness and suitability of each of the persons awarded joint
custody;

(2) whether the persons awarded joint custody are willing and
able to communicate and cooperate in advancing the child’s
welfare;

(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) whether the child has established a close and beneficial
relationship with both of the persons awarded joint custody;

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 (5) whether the persons awarded joint custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so; and

(6) the nature of the physical and emotional environment in the
home of each of the persons awarded joint custody.

Id.

[16] In this case, the trial court noted that the parties had not agreed to joint legal

custody, but found that all other factors weighed in favor of an award of joint

legal custody. On appeal, Mother argues that an award of joint custody was an

abuse of discretion because the parties have been unable to communicate

effectively concerning Child’s upbringing. We must reject this invitation to

reweigh the evidence. Although the record plainly indicates that Mother and

Father do not get along, they nevertheless managed to communicate effectively

enough throughout the provisional period when it came to Child. Accordingly,

we cannot conclude that the trial court’s decision to award joint legal custody

was an abuse of discretion.

[17] Judgment affirmed.

[18] Baker, J. and Bailey, J., concur.

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