FILED
May 31 2018, 10:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Darlene R. Seymour Janice Mandla Mattingly
Bryan L. Ciyou Janice Mandla Mattingly, P.C.
Ciyou & Dixon, P.C. Carmel, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marva Deskins Hamilton, May 31, 2018
Appellant-Petitioner, Court of Appeals Case No.
29A02-1710-DR-2428
v. Appeal from the Hamilton Superior
Court
Michael Hamilton, The Honorable Jonathan M.
Appellee-Respondent. Brown, Judge
Trial Court Cause No.
29D02-1610-DR-9293
Pyle, Judge.
Statement of the Case
[1] Marva Deskins Hamilton (“Mother”) appeals the child custody order entered
following the dissolution of her marriage to Michael Hamilton (“Father”).
Mother specifically argues that the trial court abused its discretion in awarding
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primary physical custody of their daughter, L.H., to Father. Finding no abuse
of the trial court’s discretion, we affirm the trial court’s judgment.
[2] We affirm.
Issue
Whether the trial court abused its discretion in awarding primary
physical custody of L.H. to Father.
Facts
[3] When Mother and Father began dating in 2011, Mother lived in Maryland with
her fourteen-year-old daughter, I.D., and Father lived in Indianapolis. Father
visited Mother regularly in Maryland but told her that he would never move
because he was actively involved in the life of his three-year-old son, I.H., who
lived in Indianapolis. I.H. spent three to four nights per week and every third
weekend with Father.
[4] Mother and Father eventually married in June 2013. Mother continued to live
in Maryland with I.D., and Father continued his regular visits. In March 2014,
Mother gave birth to the parties’ daughter, L.H. Father was present for the
birth and stayed with Mother, L.H., and I.D. for two weeks after L.H.’s birth.
Four months later, Mother, I.D., and L.H. moved to Indianapolis. Mother and
Father eventually purchased a home in Hamilton County where I.H. attended
school.
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[5] Mother, an attorney, obtained employment at a law firm, where she earned an
annual base salary of $120,000, with the potential to earn an additional $30,000
in annual performance bonuses for reaching certain employment-related goals.
Father is a firefighter/emergency medical technician who works a twenty-four-
hour shift every third day. He earns $80,000 per year.
[6] The parties shared household responsibilities during their marriage. Father
frequently took L.H. to daycare and picked her up at the end of the day. On
Father’s days off from the firehouse, he fixed dinner, supervised homework,
and got L.H. ready for bed. He was familiar with the pediatrician’s
recommendations for L.H.’s asthma treatment in the event she had difficulty
breathing. L.H. was very close to both her brother, I.H., and her sister, I.D.
Father’s parents, who lived nearby, were actively involved in all of the
children’s lives and provided transportation for the children on the days that
both parents worked.
[7] In October 2016, Mother filed a petition for legal separation, and in November
2016, Father filed a petition for dissolution. On March 7, 2017, the parties
entered into an agreed preliminary order regarding parenting time with three-
year-old L.H. and distribution of the parties’ property. Later that month,
Mother filed a notice of intent to relocate to Maryland and a request for a final
custody hearing, wherein Mother advised Father and the trial court that she
intended to relocate to Maryland with L.H. by July 1, 2017. Father filed an
objection to the relocation and a petition for physical custody of L.H. in April
2017.
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[8] The trial court held a three-day hearing on custody, child support, and
parenting time in June and July 2017.1 Testimony at the hearing revealed that
in October 2016, Mother learned that her former federal government job in
Maryland might be available. Without telling Father, Mother began
researching schools in the Maryland area and applied for L.H. to attend the
Langley School (“Langley”), a private school, which is located in Virginia and
offers foreign languages, art, and music. In early March 2017, Mother received
notice that L.H. had been accepted at Langley and had received a considerable
financial aid package. Mother visited Maryland later in March 2017 for a job
interview, and while she was there, she took L.H. to visit Langley. Thereafter,
Mother placed a deposit at Langley to hold L.H.’s spot. Mother never
mentioned Langley to Father.
[9] Mother further testified that she had not been happy with her law firm job in
Indianapolis and had never met the billable hour requirement. She planned to
return to her former job and house in Maryland less than a week after the
hearing. She had already sent all of her belongings to Maryland, and they were
in a storage facility. Mother explained that because of the flexible alternative
work schedules and hours, government holidays and vacation policy, she would
have flexibility in her job to spend more time with L.H. She would earn
$146,000 per year. According to Mother, she also had church, family, and
educational contacts in the Maryland area. Mother further testified that L.H.
1
The parties entered into a final settlement agreement regarding the distribution of their personal property.
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had a close bond with both I.H. and I.D., and that I.D. would be attending
college in New Jersey in the fall. Mother admitted that, although she had
always discussed the choice of schools for I.D. with I.D.’s father, she had not
discussed Langley with Father. During cross-examination, Mother admitted
that she had not investigated schools or government jobs in the Indianapolis
area. She also told the trial court that she planned to move to Maryland
“whether [the] court award[ed] custody to [her] or not.” (Tr. 160).
[10] Father testified that he would not be able to move to Maryland because of his
relationship with I.H. He expressed concern that if Mother relocated to
Maryland, she would not communicate with him about L.H. He told the trial
court that his parents would help him with L.H. on the days that he had to
work and that L.H. would be his primary focus if he was awarded physical
custody of her.
[11] At the end of the hearing, the trial court stated as follows:
I’ll tell you one thing that stuck out at me that bothers me, then
I’ll get to my order. And the thing that bothers me is that in
January, I think it was, that [Mother] was looking for a school
for her daughter in the D.C. area. Yeah, that occurred before a
job interview. Yeah, that occurred before she had a job offer.
But I feel like that [Mother] already has both feet out the door, all
her stuff is already in D.C., decisions were already made, and at
this point it’s whether or not I basically rubberstamp [Mother’s]
decision to move to Washington, D.C. with [L.H.] And the
other factor that I found concerning was that when asked
specifically about school decisions for [I.D.], [Mother] indicated
she always - she specifically said always - talked to [I.D.’s father]
about enrolling [I.D.] wherever she was going to put her in
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school, whether it be in the District area, or if it was - when she
was in kindergarten or when she went to Carmel High School.
She always contacted [I.D.’s father] . . . . We have an effort, at
this point, where she’s not extended that same courtesy to
[Father] with regards to a child that is three years old and trying
to move the child out of state. I find that problematic . . . . So I
just want the parties to know that I care about your situation. I
have agonized about this since I first met the two of you . . . like,
two weeks ago . . . . But the thing is, is that this is tough. I do - -
as I told the lawyers this morning, I don’t have a situation where
both of you are - - or one of you is a bad person. At no point
have I heard anything that leads me to believe that - - anything
other than you both love your daughter, you both want what’s
best for her, you both want each other involved with her life.
That puts me in a horrible place. The person who loses the most,
no matter what I decide, is [L.H.] . . . I will agonize over this for
the next few weeks, while I wait on the findings from everybody.
But, you know, I mean, I think that there’s some that think that
judges don’t care about what happens in their cases. I promise
you I’m not one of those . . . .
(Tr. Vol. 3 at 68-69).
[12] In October 2017, the trial court issued a detailed thirty-seven-page dissolution
order that awarded Father physical custody of L.H., thereby denying Mother’s
request to relocate the child to Maryland. Mother now appeals.
Decision
[13] Mother argues that the trial court abused its discretion when it awarded primary
physical custody of L.H. to Father. We disagree.
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[14] At the outset, we note that Father requested the trial court to enter findings of
fact and conclusions thereon pursuant to Trial Rule 52(A). We therefore apply
the following two-tiered standard of review: we first determine whether the
evidence supports the findings of fact and then determine whether the findings
of fact support the judgment. Troyer v. Troyer, 987 N.E.2d 1130, 1134 (Ind. Ct.
App. 2013), trans. denied. We will set aside findings if they are clearly
erroneous, which occurs only when the record contains no facts to support
them either directly or by inference. Campbell v. Campbell, 993 N.E.2d 205, 209
(Ind. Ct. App. 2013), trans. denied.
[15] We further note that 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)). In this regard, the Indiana
Supreme Court has explained as follows:
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
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
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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.
[16] 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. There is no
presumption favoring either parent. 2 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.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
2
To the extent that Mother argues that she should have been awarded physical custody of LH. because L.H.
is a young girl, we note that Father correctly points out that the “Maternal Preference Rule (sometimes
known as the Tender Years Doctrine) has been prohibited for decades.” (Father’s Br. at 21). The purpose of
this “statute prohibiting such presumptions is to overcome . . . the maternal preference rule followed in many
cases where the mother has been given preference particularly as to custody of children of tender years or
female children.” D.H. v. J.H., 418 N.E.2d 286, 290 (Ind. Ct. App. 1981).
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(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 . . . .
I.C. § 31-17-2-8. 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).
[17] Further, INDIANA CODE § 31-17-2.2-2(a) provides that “if 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.” Those relocation factors are as follows:
(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
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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.
I.C. § 31-17-2.2-1(b). In addition, INDIANA CODE § 31-17-2.2-5(c) provides that
the relocating parent has the burden to prove that the proposed relocation is
made in good faith and for a legitimate reason.
[18] Here, our review of the trial court’s order and the evidence reveals that both
parents have actively co-parented L.H. and are competent to handle L.H.’s
medical issues. L.H.’s family support system has been established in Indiana,
and L.H. is very close to her paternal grandparents. Further, although L.H. is
close to both of her siblings, she will have more opportunities to maintain her
bond with her brother, I.H., than she will with her sister, I.D. because I.D.
currently attends college in New Jersey. In addition, it would be nearly
impossible to foster the brother-sister bond between L.H. and I.H. if L.H.
moved to Maryland. We further note that Mother did not attempt to find
alternative employment in the Indianapolis area in order to preserve the
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existing family bonds and did not advise Father of her interest in returning to
Maryland until she had filed her notice of intent to relocate. She did not
involve Father in the school application process or inform him that she was
applying for L.H.’s enrollment at Langley. In fact, Father had never heard of
Langley until the final hearing. Mother has clearly not extended the same
courtesies to Father that she has previously extended to I.D.’s father. In
addition, Mother attempted to minimize Father’s parental contributions
because he is not as detail-oriented as Mother is. However, we agree with the
trial court that although each parent has a different parenting style, both styles
have a place in the development of a child. We further note that distance is a
major factor in the case. It is an eight to ten-hour drive from Indianapolis to
Maryland, and with Father’s work schedule, the distance would create a
substantial hardship on Father exercising parenting time with L.H. Because
Mother’s new job offers a flexible schedule and increased earing capacity, it
would be less of a hardship for Mother to visit L.H. in Indianapolis than for
Father to visit her in Maryland. This evidence supports the trial court’s award
of primary physical custody of L.H. to Father. The trial court did not abuse its
discretion.
[19] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
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