FILED
Mar 11 2019, 6:14 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Trenna S. Parker Rodney T. Sarkovics
Trenna S. Parker Law Office, P.C. Sarkovics Law
Noblesville, Indiana Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of W.R.H. March 11, 2019
Casie N. Wheeler, Court of Appeals Case No.
18A-JP-1770
Appellant-Petitioner,
Appeal from the Hamilton
v. Superior Court
The Honorable Jonathan M.
William Jesse Hinshaw, Brown, Judge
Trial Court Cause No.
Appellee-Respondent
29D02-1506-JP-839
Vaidik, Chief Judge.
Case Summary
[1] Casie N. Wheeler (“Mother”) and William Jesse Hinshaw (“Father”) shared
joint legal custody of their young son (i.e., authority and responsibility for the
major decisions concerning their son’s upbringing, including his education,
health care, and religious training). However, after Mother filed a notice of
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intent to relocate and Father objected, the trial court issued an order that,
among other things, awarded sole legal custody to Father. Mother appeals,
arguing that the parties did not raise the issue of legal custody and that the
modification was therefore improper. Father acknowledges that he did not
expressly request a change in legal custody but contends that, under Indiana’s
parental-relocation statutes, Ind. Code ch. 31-17-2.2, legal custody is placed at
issue any time one parent files a notice of intent to relocate and the other parent
objects. We disagree with Father’s reading of the statutes, and because he did
not otherwise put Mother on notice that he was seeking a change in legal
custody, we reverse the modification.
Facts and Procedural History
[2] Mother and Father are the parents of W.H., who was born in March 2014. As
of July 2017, Mother had primary physical custody of W.H., with Father
exercising significant parenting time and paying child support, and the parties
shared joint legal custody. Mother was living in Indianapolis, and Father was
living in Westfield. That month, Mother filed a notice of intent to relocate to
New Haven, Indiana, “for a teaching position with a Fort Wayne ballet
company and to pursue her undergraduate degree at Indiana University –
Purdue University Fort Wayne.” Appellant’s App. Vol. II p. 40. She
acknowledged that the move would “cause a change in the current parenting
time as the increased distance will affect Father’s currently ordered parenting
time.” Id. at 40-41.
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[3] Father immediately objected to the proposed relocation, asserting that it would
“substantially interfere with his parenting time he is currently exercising.” Id. at
43. He asked the trial court to set the matter for a hearing, to prohibit Mother
from relocating while the matter was pending, and to ultimately bar the
relocation. Father also asked the court to modify child support and to award
him “physical custody” “[s]hould Mother decide to move to Ft. Wayne[.]” Id.
at 44.
[4] The trial court set the matter for a hearing. A few days before the hearing,
Father filed a motion for rule to show cause. He alleged that Mother, without
talking to him, had enrolled W.H. in a school in New Haven. Father asserted
that this was a breach of the joint-legal-custody arrangement and asked the
court to hold her in contempt.
[5] At the hearing, the parties disputed whether W.H. had actually been “enrolled”
in the school in New Haven. They also presented extensive testimony and
exhibits regarding the proposed relocation. Father’s primary contention was
that Mother’s reason for wanting to move to New Haven was not school or
work but rather to live with her boyfriend.
[6] In January 2018, the trial court issued its order. Believing that Mother would
be relocating to New Haven regardless of the court’s decision, the court (1)
denied Mother’s request to relocate W.H., (2) awarded primary physical
custody to Father, (3) awarded sole legal custody to Father, (4) modified child
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support, and (5) found Mother in contempt of the previous legal-custody order
and ordered her to pay some of Father’s attorney’s fees.
[7] Mother then filed a motion to correct error. She did not challenge the denial of
her request to relocate W.H. to New Haven, but she argued that the rest of the
rulings were incorrect. Relevant to this appeal, Mother asserted that the parties
did not ask the trial court to modify legal custody and that the court therefore
erred by doing so. The trial court granted Mother’s motion in part, including
setting aside the finding of contempt, but it left in place the modification of legal
custody. The court concluded that “a change of custody was requested and
plead by both parties.” Appellant’s App. Vol. III p. 30.
[8] Mother now appeals.
Discussion and Decision
[9] Mother does not appeal the trial court’s rulings regarding relocation, physical
custody, or child support. She challenges only the trial court’s modification of
legal custody. Specifically, she renews her argument that Father never asked
the trial court to award him sole legal custody, that the issue of legal custody
was not otherwise placed at issue, and that the trial court therefore erred by
modifying legal custody. As we made clear in Bailey v. Bailey, “Longstanding
Indiana law has prohibited trial courts from sua sponte ordering a change of
custody.” 7 N.E.3d 340, 344 (Ind. Ct. App. 2014). The issue is one of notice:
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[W]hen such an important issue as the custody of children is
involved, a modification generally can be ordered only after a
party has filed a petition requesting such a modification, the
other party has notice of the filing, and a proper evidentiary
hearing is held at which both parties may be heard and the trial
court fully apprised of all necessary information regarding change
of circumstances and a child’s best interests before deciding
whether a modification should be ordered.
Id.
[10] For his part, Father does not dispute that the modification of custody is
improper if the issue is not raised by the parties, nor does he dispute that he
never expressly asked the trial court, in either his filings with the court or at the
hearing, to modify legal custody. Rather, he argues that, pursuant to Indiana’s
relocation statutes, Ind. Code ch. 31-17-2.2, legal custody was “automatically at
issue” once he requested a hearing regarding Mother’s notice of intent to
relocate. Appellee’s Br. p. 6. Mother disagrees with Father’s reading of the
relocation statutes. Statutory construction is a matter of law that we review de
novo. Edmonds v. State, 100 N.E.3d 258, 261 (Ind. 2018).
[11] Indiana Code section 31-17-2.2-1(a) provides that a “relocating individual”—a
person who has or is seeking custody of a child or parenting time with a child
and who intends to move their principal residence, Ind. Code § 31-9-2-107.5—
“must file a notice of the intent to move[.]” Here, Mother filed such a notice,
and Father responded with an objection in which he requested that the court set
a hearing. In support of his argument that legal custody was at issue as soon as
he requested a hearing, Father cites Indiana Code section 31-17-2.2-1(b), which
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provides, in part, “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.” According to
Father, this provision means that both physical and legal custody are at issue
and subject to modification any time a parent requests a hearing regarding the
other parent’s notice of intent to relocate, regardless of the reason for, or the
content of, the request for a hearing. Appellee’s Br. p. 9 (“[T]he mere filing of a
request for hearing after the initiating party files a notice of intent to relocate
places custody at issue, physical and/or legal custody.”).
[12] We think Father misreads the opening phrase “Upon motion of a party[.]”
Father apparently believes that the “motion” referred to in that phrase is a
motion or request for a hearing, so that “the court shall set the matter for a
hearing to review and modify, if appropriate, a custody order” any time a
parent asks for a hearing on another parent’s notice of intent to relocate. See id.
at 11 (Father arguing that “the statute specifically says that after a party files a
motion for hearing that a modification of custody is a potential consequence or
result”). But the statute does not contemplate a generic “motion” or “request”
for a hearing regarding a proposed relocation. As our Supreme Court has
explained, what Section 31-17-2.2-1(b) contemplates, and the “motion” to
which it refers, is a motion to modify an existing custody order (or parenting
time order, or grandparent visitation order, or child support order). See
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Baxendale v. Raich, 878 N.E.2d 1252, 1256 n.5 (Ind. 2008).1 So, for example, if a
parent files a motion to modify the existing physical-custody order, then “the
court shall set the matter for a hearing to review and modify, if appropriate, [the
physical-custody order.]” If a parent files a motion to modify the existing legal-
custody order, then “the court shall set the matter for a hearing to review and
modify, if appropriate, [the legal-custody order.]” If, on the other hand, a
parent files only a motion to modify the existing child-support order, then “the
court shall set the matter for a hearing to review and modify, if appropriate, [the
child-support order]” without concerning itself with physical or legal custody.
In short, the requests of the parties frame the issues for the hearing, which may
or may not include the issue of legal custody.
[13] To be sure, physical custody and/or parenting time will be at issue virtually any
time a parent is looking to move a significant distance. But the same is not
necessarily true of legal custody. Physical distance does not prevent parents,
especially given today’s technology, from communicating effectively about
education, health care, religion, and other aspects of a child’s upbringing. And
for this reason a parent who wants a change in legal custody must ask for one.
If Father had done so in this case, it is entirely possible that Mother would have
1
A nonrelocating parent also has the option of filing a motion to simply prevent the relocation pursuant to
Indiana Code section 31-17-2.2-5(a), without seeking any sort of modification. See Baxendale, 878 N.E.2d at
1256 n.5.
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presented significant additional evidence relevant to the specific issue of legal
custody.
[14] Instead, after Mother filed her notice of intent to relocate, Father filed a
“Verified Objection to Petitioner’s Notice of Intent to Relocate and Petition to
Modify Child Support.” In that filing, Father asked the trial court to (1) modify
child support, (2) prohibit Mother from relocating the child while the matter
was pending, (3) deny Mother’s proposed relocation, (4) award him “physical
custody” “[s]hould Mother decide to move to Ft. Wayne,” and (5) “set this
matter for hearing[.]” Appellant’s App. Vol. II pp. 43-44. Father specifically
requested a change in “physical custody,” thereby putting Mother on notice
that physical custody would be at issue at the hearing. If he also wanted a
change in legal custody, he should have said so, either in his filing or at the
subsequent hearing. He did not. The term “legal custody” was used at the
hearing, but only in the context of Father’s request to have Mother found in
contempt for allegedly violating the existing legal-custody order. And while
evidence was presented that would have been relevant if legal custody had been
placed at issue (e.g., evidence of the parties’ communication), that evidence was
separately relevant to the main issue before the court: whether to allow Mother
to move W.H. to New Haven. As such, it cannot be said that the issue of legal
custody was tried by consent pursuant to Indiana Trial Rule 15(B), see Bailey, 7
N.E.3d at 344, and Father makes no such argument on appeal. For these
reasons, and because Indiana Code section 31-17-2.2-1 does not place legal
custody at issue any time there is a hearing regarding a proposed relocation,
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legal custody was not at issue at the hearing, and the trial court erred by
ordering the modification.
[15] Reversed.
Mathias, J., concurs.
Crone, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019 Page 9 of 12
IN THE
COURT OF APPEALS OF INDIANA
In Re the Paternity of: W.R.H. Court of Appeals Case No.
18A-JP-1770
Casie N. Wheeler,
Appellant-Petitioner,
v.
William Jesse Hinshaw,
Appellee-Respondent
Crone, Judge, dissenting.
[16] I respectfully disagree with the majority’s interpretation of Indiana Code
Section 31-17-2.2-1(b). It is important to recognize not only what a statute says,
but also what it does not say. In re Estate of Jackson, 938 N.E.2d 1200, 1207
(Ind. Ct. App. 2010), trans. denied (2011). The statute does not require the party
who moves for a hearing to “frame[] the issue(s) for the hearing,” slip op. at 7,
nor does it limit the issues that a trial court may adjudicate at the hearing.
Indeed, the statute authorizes a court to modify a custody order, a parenting
time order, or a child support order “if appropriate[.]” Ind. Code § 31-17-2.2-
1(b). A court must “take into account” the same six considerations with respect
to all of those orders, and all of those considerations “affect[] the best interest of
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the child.”2 Id. In sum, the statute itself puts parties on notice that custody
(both legal and physical), parenting time, and child support are always at issue
whenever a court holds a hearing on a party’s notice of intent to move. Unless
the effects of a party’s relocation are de minimis, 3 a relocation will upset the
existing balance of custody, parenting time, and child support arrangements to
some degree; the legislature has given trial courts the discretion to rebalance
2
The sixth consideration is “[o]ther factors affecting the best interest of the child.” Ind. Code § 31-17-2.2-
1(b)(6). In D.C. v. J.A.C., our supreme court explained that those other factors
include, among other things, the child’s age and sex; the parents’ wishes; the child’s wishes,
with the wishes of children fourteen years or older being given more weight; the child’s
relationship with parents, siblings, and any other person affecting the child’s best interests; and
the child’s adjustment to home, school, and the community. I.C. § 31-17-2-8; see also Baxendale
v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). When one parent is relocating, it is not necessary
for a court to find a substantial change in one of these “other factors” before modifying custody.
See Baxendale, 878 N.E.2d at 1257.
977 N.E.2d 951, 954 (Ind. 2012) (footnote omitted). Both D.C. and Baxendale involved modification of
physical custody. In Milcherska v. Hoerstman, another panel of this Court stated,
We note that when one parent is relocating, it is not necessary for a court to find a substantial
change in one of the Section 31-17-2-8 factors before modifying physical custody. D.C., 977
N.E.2d at 954. However, our courts have not similarly waived the “substantial change”
requirement for legal custody determinations in the event of a parent’s relocation.
56 N.E.3d 634, 641 n.3 (Ind. Ct. App. 2016). Accordingly, the Milcherska panel stated, “When considering a
modification from joint legal custody to sole legal custody, we must determine whether there has been a
substantial change in one or more of the factors listed in Indiana Code section 31-17-2-15, in addition to
considering any substantial change to the Section 8 factors, as is typically necessary for physical custody
modification.” Id. at 641 (citing Julie C. v. Andrew C., 924 N.E.2d 1249, 1259 (Ind. Ct. App. 2010) (citing
Carmichael v. Siegel, 754 N.E.2d 619, 635 n.7 (Ind. Ct. App. 2001)). Indiana Code Section 31-17-2-15 lists
factors to be considered in awarding joint legal custody, including whether the parties “have agreed to an
award of joint legal custody[,]” “the fitness and suitability of each of the persons awarded joint custody[,]”
“whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing
the child’s welfare[,]” and “whether the persons awarded joint custody: (A) live in close proximity to each
other; and (B) plan to continue to do so[.]” In its original order in this case, the trial court considered the
Section 8 factors but did not make a specific finding regarding substantial changes, and it did not mention
Indiana Code Section 31-17-2-15 at all. Citing Baxendale and Milcherska, Mother contends that this was error.
I disagree. As noted in Baxendale (which, like Indiana Code Section 31-17-2.2-1(b), does not distinguish
between legal and physical custody), Indiana Code Chapter 2.2 “is a self-contained chapter and does not by
its terms refer to the general change of custody provisions” in Section 8. 878 N.E.2d at 1257. Likewise, it
does not refer to Indiana Code Section 31-17-2-15.
3
As an example, Father filed a notice of intent to relocate within his apartment complex. Tr. Vol. 3 at 41.
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them “if appropriate,” based on the evidence presented at the hearing and
unfettered by the contents of a party’s motion for the hearing.
[17] In this case, although Father’s verified objection to Mother’s notice of intent to
relocate specifically requested only a change in physical custody if Mother
decided to move to Fort Wayne, the trial court heard evidence regarding
“parental alienation behaviors by Mother[,]” her failure to communicate with
Father about W.H.’s daycare, her frequent residence changes, her “lack of
stability in employment,” and her failure to follow the trial court’s orders, all of
which negatively impacted the joint legal custody arrangement. Appealed
Order at 4, 5. The trial court found that modifying that arrangement would be
in W.H.’s best interest, a determination that Mother did not challenge in her
motion to correct error and does not challenge on appeal. Because the child’s
best interest is the touchstone of a custody determination, and because Mother
was aware that the issue of custody would be litigated at the hearing, I would
affirm the trial court’s award of sole legal custody to Father. In my view,
reversing for possible relitigation of this issue would be a waste of the parties’
and the trial court’s resources.
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