FILED
Oct 31 2023, 9:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Allison L. Martinez Wheeler Jonathan R. Deenik
Indianapolis, Indiana Deenik Lowe, LLC
Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nadia Drake, October 31, 2023
Appellant-Petitioner, Court of Appeals Case No.
22A-DC-3089
v. Appeal from the Marion Superior
Court
Zachary Drake, The Honorable Ryan Gardner,
Appellee-Respondent. Judge
The Honorable Sarah Glasser,
Magistrate
The Honorable Regina Tidwell,
Magistrate
Trial Court Cause No.
49D10-2106-DC-4665
Opinion by Judge Riley
Judges Crone and Mathias concur.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, Nadia Drake (Wife), appeals the trial court’s findings of
fact and conclusions thereon, dissolving her marriage to Appellee-Respondent,
Zachary Drake (Husband).
[2] We affirm.
ISSUES
[3] Wife presents this court with three issues on appeal, which we consolidate and
restate as follows:
(1) Whether the trial court’s provisional order and order on Husband’s
motion to continue are void due to the Magistrate’s professional conflict
with Husband’s counsel; and
(2) Whether the trial court abused its discretion by denying wife’s request to
relocate with the minor child to San Diego, California.
FACTS AND PROCEDURAL HISTORY
[4] The facts favorable to the trial court’s decision are as follows. In November
2016, Wife and Husband met in Wife’s hometown of San Diego, California,
while Husband was stationed at MCAS Miramar with the Marine Corps. At
the time, Wife was a student at Miramar College, pursuing an associate degree
in criminal justice. The parties also resided in Portland, Oregon, for a little over
a year, where Wife worked with America’s Best as an eyecare specialist. On
March 21, 2017, the parties married, and in March 2018, they moved to
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Indiana, where Husband pursued an aviation certificate. On August 10, 2018,
L.D. (Child) was born to Wife and Husband.
[5] On June 4, 2021, Wife filed her petition to dissolve the marriage. Five days
later, on June 9, 2021, Wife filed a notice of intent to relocate. In her notice,
Wife specified that she intended to relocate with Child to San Diego,
California, to attend and complete school at San Diego Miramar College; that
she received an offer of employment at NVision in San Diego, earning more
than her current wages; and that she has a support system in San Diego that
will help provide care and support for both her and Child. On July 6, 2021,
Husband objected because “the proposed relocation would likely result in
significant damage to the relationship between Child and Husband, for the
reason that Husband and [C]hild have a very close and bonded relationship,
and Husband had always exercised regular care responsibilities.” (Appellant’s
App. Vol. II, p. 51).
[6] At the end of January 2022, prior to the trial court’s ruling on Wife’s intent to
relocate and with three days’ advance notice, Wife notified Husband that she
and Child were leaving for a month-long vacation in California on February 2,
2022. Husband immediately voiced his objection to Wife’s intended travel
plans, as it would deprive him of his agreed-upon parenting time with Child.
On February 7, 2022, the trial court issued a provisional order in the
proceeding, establishing joint physical and legal custody of Child, with
Husband paying weekly child support to Wife in the amount of $107. Despite
this provisional order, Wife did not return to Indiana with Child. Instead,
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Husband filed a Verified Petition for Enforcement and Request for Immediate
Hearing, requesting the trial court to compel Wife to return to Indiana and
comply with his parenting time as established in the provisional order. On
February 14, 2022, the trial court issued an order, compelling Wife to return
Child from California before February 20, 2022. Wife complied with the order.
[7] On November 28, 2022, the trial court issued its Decree of Dissolution after the
parties stipulated to a property division in open court, which was approved by
the trial court and incorporated in its Decree. The trial court issued the
following conclusions in support of its denial of Wife’s intent to relocate:
Wife’s relocation is in good faith and for a legitimate reason, as
she wants to move closer to family to have more of a support
network for her and the [C]hild.
****
The [c]ourt notes it is a significant distance, over 2,000 miles,
from San Diego, California to Indianapolis, Indiana. Husband
will not be able to exercise his current parenting time schedule.
Due to the distance between California and Indiana, most of
Husband’s communication with the [C]hild would be through
Facetime or a similar computer application when the [C]hild is in
California. The [C]hild is not at an age where she is able to
utilize such technology and communicate with Husband by
phone or by computer to maintain the relationship and bond.
Husband had to previously reestablish his bond with the [C]hild
when Wife went to California with the [C]hild.
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Wife would point to the parties’ payment of costs to transport the
[C]hild between California and Indiana in 2019 as an indication
that the expense is affordable. The [c]ourt notes that there was
not a transportation expense for the [C]hild in 2019 as the [C]hild
was an infant and flew for free. Additionally, Wife’s family was
assisting Wife with her expense for her own ticket(s) and Wife
indicated she has not gone to see her family due to her inability
to pay for it. The parties would be required to spend significant
sums of money each year for airline travel to and from
California. [Child] is not old enough to travel as an
unaccompanied minor, meaning each parent would have to fly
round-trip for each instance of parenting time. Husband’s
current employer does not include a benefit which could off-set
the cost of his travel. The [c]ourt finds that neither party is in a
financial position that would allow for the exercise of regular and
consistent parenting time considering the cost associated with the
parenting time.
The [C]hild has close and loving relationships with many family
members who live in and around the Indianapolis area. Those
relationships and consistent contacts would not be able to
continue as they are if the [C]hild relocated to California. While
the [c]ourt is cognizant of the extensive family the [C]hild has in
California, the evidence presented demonstrates that the [C]hild
last spent time with them in February 2022 and prior to that, in
May 2020. Outside of those contacts, the [C]hild has had very
little recent in-person contact with those family members.
Wife has established a pattern of conduct of leaving the State of
Indiana with the [C]hild and going to California, thwarting
Husband’s contact with the [C]hild. Husband had to seek [c]ourt
involvement each time and Wife was ordered to return each
time. Outside of these incidents, Wife has not significantly
interfered with Husband’s bonding with the child.
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The [c]ourt does not find credible Wife’s claim that she needs to
return to California to complete an associate degree to pursue her
chosen field as a funeral director. While Wife may have
completed some schooling, she has not pursued any higher
education for the last several years while living in Indiana. The
[c]ourt has concerns with Wife’s plan to work full time, pursue
schooling, and allow for her family to care for the [C]hild. If
permitted to relocate, the [C]hild would spend the majority of her
time with Wife’s family, but not [with] Wife or with Husband.
Here, both parents are willing and able to maintain an active role
in [Child’s] life.
While Wife has been offered a position making slightly more
money, the [c]ourt does not find the pay increase to be at all
significant, considering the cost-of-living differences between San
Diego and Indianapolis and the expense to travel between the
two cities.
The [c]ourt does not believe it feasible for Husband to maintain
his current close relationship and bond with the [C]hild should
she relocate to California. For over one year, the parties have
exercised a joint legal and physical custody arrangement. By all
accounts the [C]hild is happy, well-adjusted, and excelling. The
[c]ourt attributes the [C]hild’s overall well-being to the parties,
and their joint custody arrangement. A relocation would
significantly alter the relationship between [C]hild and parent.
It is not in the [Child’s] best interest to alter the nature and
quality of the relationship with Husband by allowing the [C]hild
to be relocated.
(Appellant’s App. Vol. II, pp. 35-37).
[8] Wife now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Professional Conflict
[9] Wife first contends that the trial court’s provisional order and order on
Husband’s motion to continue are void due to the Magistrate’s professional
conflict with Husband’s counsel. Besides a general recitation of the rules of
Judicial Conduct and some case law relating to judicial bias and impropriety,
Wife fails to articulate any argument or develop any analysis that would allow
us to review the issue. In fact, her entire claim amounts to “[t]he trial court
abused its discretion when [the Magistrate] did not disqualify herself upon
learning that a professional conflict existed when Husband’s new counsel
entered his appearance in the case.” (Appellant’s Br. p. 16). Beyond this broad
statement, Wife does not further elaborate on the perceived reason for the
disqualification or the type of ‘professional conflict.’
[10] The purpose of the appellate rules, especially Indiana Appellate Rule 46, is to
aid and expedite review, as well as to relieve the appellate court of the burden of
searching the record and briefing the case. Thacker v. Wentzel, 797 N.E.2d 342,
345 (Ind. Ct. App. 2003). Indiana Appellate Rule 46(A)(8)(a) states that the
argument section of an appellant’s brief “must contain the contentions of the
appellant on the issues presented, supported by cogent reasoning. Each
contention must be supported by citations to the authorities, statutes, and the
Appendix or parts of the Record on Appeal relied on[.]” It is well settled that
we will not consider an appellant’s assertion on appeal when she has failed to
present cogent argument supported by authority and references to the record as
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required by the rules. Thacker, 797 N.E.2d at 345. If we were to address such
arguments, we would be forced to abdicate our role as an impartial tribunal and
would instead become an advocate for one of the parties. This, clearly, we
cannot do. See id.; Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).
Accordingly, as Wife has failed to present us with a cogent argument, the issue
is waived for our review. See id.
II. Intent to Relocate
[11] Next, Wife contends that the trial court abused its discretion when it denied her
request to relocate Child to San Diego, California. The trial court entered
findings of fact and conclusions of law pursuant to Mother’s request under
Indiana Trial Rule 52(A). Our standard of review is well-settled: We must first
determine whether the record supports the factual findings, and then whether
the findings support the judgment. M.S. v. C.S., 938 N.E.2d 278, 281-82 (Ind.
Ct. App. 2010). On appeal, we will not set aside the findings or judgment
unless they are clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of witnesses. Id. at 282.
We therefore consider only the evidence favorable to the judgment and the
reasonable inferences flowing therefrom, and we will neither reweigh the
evidence nor assess witness credibility. Id. A judgment is clearly erroneous
when there is no evidence to support the findings, the findings do not support
the judgment, or the trial court applies the wrong legal standard to properly
found facts. Id.
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[12] “In addition to the standard of review under Trial Rule 52, 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 re-emphasized this principle, stating that we
afford such deference because of a trial court’s “unique, direct interactions with
the parties face-to-face.” 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.; see also Kirk v. Kirk, 770 N.E.2d
304, 307 (Ind. 2002). Therefore, 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).
[13] When a parent files a notice of intent to relocate, the nonrelocating parent may
object by moving to modify custody or to prevent the child’s relocation. Ind.
Code §§ 31-17-2.2-1(b); -5(a). When this objection is made, “[t]he relocating
individual has the burden of proof that the proposed relocation is made in good
faith and for a legitimate reason.” I.C. § 31-17-2.2-5(c). If the relocating parent
shows good faith and a legitimate reason, “the burden shifts to the
nonrelocating parent to show that the proposed relocation is not in the best
interest of the child.” I.C. § 31-17-2.2-5(f). A court must weigh the following
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factors in considering a proposed relocation, as set forth in Indiana Code
section 31-17-2.2-1(b):
(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:
(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.
“Other factors affecting the best interest of the child” 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, 878 N.E.2d at 1257.
[14] In this case, the trial court found that Wife met the initial burden of showing a
legitimate reason and good faith in relocating. The trial court then turned to
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the issue of whether relocation of Child was in Child’s best interests. It
ultimately concluded that relocation would not be in Child’s best interests,
citing the following reasons: the distance and travel expenses involved in the
move were significant; Husband was very involved in Child’s daily activities;
Child has a bond with the extended family in and around the Indianapolis area;
and relocation would cause a significant deterioration in Child’s relationships
with Husband and Child’s extended family.
[15] Instead of analyzing the trial court’s findings and conclusions with respect to
the relocation and focusing on the court’s perceived errors therein, Wife
presents us with her own enumeration of the statutory factors of the relocation
statute in light of the evidence most favorable to her. For instance, despite
extensive evidence to the contrary and the trial court’s conclusions, Wife
continues to insist that Husband’s employment will pay for his travel expenses,
and that Husband cannot exercise his parenting time due to his extensive
employment-required travel schedule. To the contrary, Husband testified, and
the trial court found credible, that Husband changed employment to a new
position that no longer requires him to travel and that allows him to exercise his
parenting time. In essence, Wife’s entire argument amounts to a request to
reweigh the evidence and to revisit the credibility of the witnesses, which, in
light of our deferential standard of review, we are not allowed to do. See M.S.,
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938 N.E.2d at 282. Therefore, we affirm the trial court’s denial of Wife’s
request to relocate Child to California. 1
CONCLUSION
[16] Based on the foregoing, we hold that Wife waived her argument on the
Magistrate’s perceived professional conflict for failure to present a cogent
argument and we conclude that the trial court did not abuse its discretion by
denying Wife’s request to relocate Child to San Diego, California.
[17] Affirmed.
Crone, J. and Mathias, J. concur
1
In the final paragraph of her appellate brief, Wife appears to contest the trial court’s child support order,
makes a request for Husband to pay her rent, as well as a request to order Husband to pay her appellate
attorney fees. Besides these general single-sentence allegations, Wife fails to present any analysis, let alone
support these arguments with citations to the record and relevant case law. Accordingly, as wife failed to
make a cogent argument, the issues are waived for our review. See Ind. Appellate Rule 46(A)(8)(a).
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