MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be May 21 2018, 5:58 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Brandon Rush Jeffrey Elftman
Rush Law Office, LLC Kokomo, Indiana
Peru, Indiana
Sharon L. Breitenbach
Breitenbach Law
Peru, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of G.H. and May 21, 2018
J.H. (Minor Children): Court of Appeals Case No.
17A-JP-3011
R.H.,
Appeal from the Cass Circuit
Appellant-Petitioner, Court
v. The Honorable Leo T. Burns,
Judge
H.W., Trial Court Cause Nos.
09C01-1207-JP-57
Appellee-Respondent. 09C01-1207-JP-58
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018 Page 1 of 9
Statement of the Case
[1] R.H. (“Father”) appeals the trial court’s order denying his petition to modify
custody of his two children with H.W. (“Mother”). Father presents a single
issue for our review, namely, whether the court abused its discretion when it
denied his petition. We affirm.
Facts and Procedural History
[2] Father and Mother have two minor children together, G.H. and J.H. (“the
Children”), who were both born out-of-wedlock. After Father established his
paternity with the trial court, the court awarded primary physical custody of the
Children to Mother and parenting time to Father. In February 2017, Father
and his family, which includes his wife and their five children, moved to
Bunker Hill.
[3] In March 2017, Mother began dating R.S. Also that month, Mother and Father
discussed enrolling the Children in the Maconaquah school district. In June,
Mother moved into a residence in Peru. In July, Father registered the Children
in the Maconaquah school district. In late July, Mother notified Father by text
message that she and the Children were moving to Flora to live with R.S. one
week later. Mother also informed Father that she intended to enroll the
Children in another school. Mother did not file a notice of intent to relocate
with the trial court.
[4] On August 1, Father filed with the trial court a motion to prevent relocation,
request for temporary order to restrain relocation, and motion for modification
Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018 Page 2 of 9
of custody.1 The trial court held a hearing on Father’s motions, which Mother
did not attend, and on August 18, the court issued an order granting Father
temporary physical custody of the Children. The court “rescind[ed]” that order
on August 24, but ordered that the Children continue to attend school in the
Maconaquah school district. Appellant’s App. Vol. II at 8. Following an
evidentiary hearing on November 16, the trial court denied Father’s motion to
modify custody. This appeal ensued.
Discussion and Decision
[5] Father contends that the trial court abused its discretion when it denied his
motion to modify custody. We review custody modifications for an abuse of
discretion, with a “preference for granting latitude and deference to our trial
judges in family law matters.” Wolljung v. Sidell, 891 N.E.2d 1109, 1111 (Ind.
Ct. App. 2008) (quoting Apter v. Ross, 781 N.E.2d 744, 757 (Ind. Ct. App. 2003),
trans. denied). We will not reweigh the evidence or judge the credibility of the
witnesses. Id. Rather, we consider only the evidence most favorable to the
judgment and any reasonable inferences from that evidence. Id.
[6] Indiana Code Section 31-17-2.2-1 provides in relevant part as follows:
(a) A relocating individual must file a notice of the intent to
move with the clerk of the court that:
1
Father has not included his motion in his appendix on appeal.
Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018 Page 3 of 9
(1) issued the custody order or parenting time order;
or
(2) if subdivision (1) does not apply, 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.
(b) Upon 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. 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:
Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018 Page 4 of 9
(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.
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. H.H. v. A.A., 3 N.E.3d 30, 34 (Ind. Ct.
App. 2014).
[7] In relocation cases, there is an interplay between the custodial modification
statute, Indiana Code Section 31-17-2-21, and the relocation statutes, Indiana
Code 31-17-2.2-1 through -6. Wolljung, 891 N.E.2d at 1113. While there is
some overlap between the two statutes, both are in play and must be
considered. Id. Given the specific command of the legislature as stated in the
relocation statute, the trial court is required to take into account all of the
factors under Section 31-17-2.2-1(b).
[8] Father first contends that the trial court did not comply with Indiana Code
Section 31-17-2.2-5(c), which puts the burden of proof on the relocating parent
to prove that a move is made “in good faith and for a legitimate reason.”2 In
2
We note that Father does not contend that Mother’s failure to file with the trial court a notice of her intent
to relocate has any bearing on the issue on appeal. See, e.g., Gold v. Weather, 14 N.E.3d 836, 942 (Ind. Ct.
App. 2014) (holding a trial court can consider noncompliance with the statutory notice provision as
Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018 Page 5 of 9
particular, Father maintains that, at the conclusion of the evidentiary hearing,
the trial court’s statements in open court indicated that it did not require
Mother to satisfy her burden of proof. We cannot agree.
[9] As this court has explained,
our body of case law has not explicitly set forth the meaning of
legitimate and good faith reasons in the relocation context. [T.L.
v. J.L.,] 950 N.E.2d [779,] 787[ (Ind. Ct. App. 2011)]. However,
[in T.L.,] we observed that “it is common in our society that
people move to live near family members, for financial reasons,
or to obtain or maintain employment.” Id. at 787-88. Thus, we
inferred that these and similar reasons are what the legislature
intended in requiring that relocation be for “legitimate” and
“good faith” reasons. Id. at 788. We further noted that, as the
relocation statute provides and the Indiana Supreme Court has
observed, the resolution of relocation disputes ultimately turns on a
judicial determination of the best interests of the child, part two of the
two-prong standard. Id. (citing Baxendale[ v. Raich], 878 N.E.2d
[1252,] 1256 n.5[ (Ind. 2008)]). “If part one, the requirement of a
legitimate and good faith reason, posed an inordinately high bar
for a relocating parent to meet, it could too often prevent trial
courts from reaching part two and appropriately deciding the
dispute based on the best interests of the affected child.” Id.
H.H., 3 N.E.3d at 35 (emphasis added).
[10] Here, neither party requested, and the trial court was not required to enter,
findings and conclusions. R.A.P. v. C.D.T. (In re J.T.), 988 N.E.2d 398, 400
indicative of a parent’s “insidious intent”), trans. denied. As the trial court noted, Father likewise did not file
an intent to relocate when he moved to Bunker Hill in February 2017.
Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018 Page 6 of 9
(Ind. Ct. App. 2013). Still, at the conclusion of the evidentiary hearing, the trial
court issued its ruling denying Father’s motion to modify custody in open court
and made remarks about the best interests of the Children. While the trial court
did not explicitly state that Mother had a burden to prove that her move was
made in good faith and for a legitimate reason, we read the court’s comments as
entirely consistent with our analysis in H.H. set out above. We reject Father’s
contention on this issue.
[11] Moreover, where a trial court does not make findings and conclusions, we
simply review the record to determine whether there is sufficient evidence of
each relevant factor to support the trial court’s decision. See Harpenau v.
Harpenau (In re Harpenau), 17 N.E.3d 342, 347 (Ind. Ct. App. 2014). Here,
Mother testified that she moved to Flora to live with her boyfriend and because
her eldest daughter, R., was having anxiety issues and needed to go to a
different school. That evidence is sufficient to satisfy Mother’s burden of proof
to show that her move was in good faith and for legitimate reasons. See, e.g.,
H.H., 3 N.E.3d at 36 (holding trial court erred when it found Mother’s proposed
relocation for purpose of living with Husband, who had already moved, was
not made in good faith or for legitimate purpose).
[12] Father also contends that he satisfied his burden to prove that a modification of
custody is in the Children’s best interests. Father correctly points out that,
assuming Mother satisfied her burden to show that her relocation was in good
faith and for a legitimate purpose, the burden then shifted to him to show that
the proposed relocation is not in the best interests of the Children. I.C. § 31-17-
Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018 Page 7 of 9
2.2-5(d). And Father maintains that he presented evidence on each factor set
out in Indiana Code Section 37-17-2.2-1(b) to support modification of custody.
But Father’s contention on this issue is nothing more than a request that we
reweigh the evidence, which we cannot do. The trial court heard relevant
evidence on each statutory factor as follows:
a. The distance involved. Father testified that, since Mother had
moved with the Children to Flora, he had not provided
transportation to exercise his parenting time because it was “too
far.” Tr. at 47. But Father also acknowledged that he is “willing
and able” to transport the Children from Flora to exercise his
parenting time. Id. at 36. Mother presented evidence that her
new home in Flora is only forty minutes away from Father’s
home in Bunker Hill. Thus, the distance between the homes is
relatively insignificant.
b. The feasibility of preserving the relationship between Father
and the Children. Again, Father testified that he is “willing and
able” to transport the Children from Flora to exercise his
parenting time. Id. Accordingly, the evidence on this factor
supports the trial court’s denial of Father’s motion to modify
custody.
c. Pattern of Conduct by Relocating Parent. As for the existence
of a pattern of conduct by Mother, including actions to promote
or thwart Father’s contact with the Children, Father testified that
Mother has denied his requests for extra parenting time while
Mother is working and the Children are out of school. However,
Father also testified that he and Mother have attended therapy
together in an effort “to better [their] communications[.]” Id. at
29. And the trial court noted that Father and Mother had
worked well together over the years to “put[ the C]hildren
first[.]” Id. at 87. The evidence supports a determination that
Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018 Page 8 of 9
there is no pattern of conduct by Mother to thwart Father’s
parenting time.
d. Reasons for Seeking or Opposing Relocation. Again, Mother
testified that she and the Children moved to Flora so that Mother
could be with her boyfriend and because her eldest daughter, R.,
was having anxiety issues related to the Maconaquah school
district. That evidence is sufficient to prove that Mother’s
relocation was in good faith and for a legitimate purpose.
e. Other factors. Father maintains that a modification of
custody is in the Children’s best interests because “from his
household the [C]hildren can better be given an open access to
both parents and . . . he is home every day when the [C]hildren
get off the bus.” Appellant’s Br. at 12. But Mother testified that
she only works two days per week some weeks, and other weeks
she has Wednesdays and Thursdays off of work. And in
assessing the best interests of the Children, the trial court stated
that it felt that Mother has been an “anchor” for the Children,
which helped them stay “resilien[t]” throughout the dissolution
proceedings. Id. at 92.
We cannot say that the trial court abused its discretion when it concluded that
denying Father’s motion to modify custody was in the Children’s best interests. 3
[13] Affirmed.
Robb, J., and Altice, J., concur.
3
To the extent Father contends that the trial court’s statements at the conclusion of the hearing indicate that
it did not consider all of the relevant statutory factors, again, the court did not enter findings and conclusions.
Accordingly, we look to the sufficiency of the evidence to support each factor. In re Harpenau, 17 N.E.3d at
347.
Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018 Page 9 of 9