MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
court except for the purpose of establishing Nov 16 2017, 6:29 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Darlene R. Seymour David E. Baum
Ciyou & Dixon, P.C. David E. Baum Law Office, P.C.
Indianapolis, Indiana Chesterton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Marriage of November 16, 2017
S.B., Court of Appeals Case No.
Appellant-Petitioner, 64A03-1706-DR-1185
Appeal from the Porter Superior
v. Court
The Honorable Roger V. Bradford,
J.B., Judge
The Honorable Mary A. DeBoer,
Appellee-Respondent
Magistrate
Trial Court Cause No.
64D01-1303-DR-2181
Baker, Judge.
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[1] This is the second time this Court has had occasion to consider the contentious
custody arrangement between S.B. (Mother) and J.B. (Father). After the first
appeal, we remanded to the trial court with instructions to engage in required
statutory analysis. It did so and arrived at the same result, awarding physical
custody of the parties’ child to Father and denying Mother’s request to relocate
with the child. Mother now appeals, arguing that the trial court did not comply
with our directive and that the evidence does not support its order. Finding that
the trial court adeptly complied with our instructions and that the evidence is
sufficient, we affirm.
Facts
[2] The underlying facts, as described by this Court in the first appeal involving
these parties, are as follows:
Mother and Father were married, and one child, B.B., was born
of the marriage on May 27, 2010. Their marriage was dissolved
on August 7, 2014. As part of its dissolution order, the
dissolution court incorporated an agreement reached during
mediation by the parties regarding custody and parenting time
(the Mediation Agreement). In relevant part, the Mediation
Agreement provides as follows:
• Mother and Father would have joint legal custody of B.B.
• Although the Mediation Agreement does not include a specific
agreement regarding physical custody of B.B., it implied that B.B.
would live with Mother and stated that Father would have
parenting time every other weekend and one weeknight per week.
Father also provided childcare to B.B. during Mother’s weekday
work hours.
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• Father agreed to pay child support based upon an assumption that
he would exercise 140 overnights with B.B. annually.
• The Indiana Parenting Time Guidelines would govern division of
holiday parenting time, and “Mother shall be classified as the
custodial parent for the purpose of interpreting said guidelines, and
for that purpose only.” Appellant’s App. p. 35.
• The parties agreed that the “parenting time schedule shall remain
in effect through the date the parties’ minor child commences
kindergarten at which time the parties shall restructure parenting
time to effectuate an equal division of the same based on the
child’s school schedule.” Id.
In September 2014, Mother began searching for a more
affordable home. She found a suitable option in North Judson,
where Mother’s parents lived, which was approximately twenty-
five miles from her prior residence.
In December 2014, Father made a feces shape out of Play-Doh,
placed it so that it appeared to be coming out of B.B.’s bottom,
took a picture of the event, and posted it to Facebook. Mother
saw the picture, became alarmed, and contacted the Department
of Child Services (DCS). She refused to permit Father to exercise
his parenting time until DCS completed its investigation and
report. [Footnote 1] On December 19, 2014, Father filed
pleadings with the court regarding the denial of his parenting
time. The trial court issued a temporary restraining order
requiring Mother to provide Father with his parenting time and a
citation for contempt of court the same day.
[Footnote 1] DCS found that the allegations of abuse or
neglect were unsubstantiated and no criminal charges were
filed against Father as a result of the incident.
On January 7, 2015, Mother filed a notice of intent to relocate
and a petition to modify parenting time based on the Play-Doh
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incident. On February 23, 2015, Father filed a motion for an
order to prevent the relocation of B.B. and a petition to modify
custody, parenting time, and child support.
In re the Marriage of S.B., No. 64A03-1603-DR-533, at *1-*2 (Ind. Ct. App. Dec.
20, 2016) (“S.B. I”), trans. denied. Following an evidentiary hearing, the trial
court awarded physical custody to Father. Mother appealed and we reversed
and remanded, finding that the trial court had not applied required statutory
factors. On remand, we directed the trial court to (1) apply the burden-shifting
provision found in Indiana Code section 31-17-2.2-5 to Father’s motion to
prevent B.B.’s relocation; and (2) apply and analyze all factors found in Indiana
Code section 31-17-2.2-1(b) with respect to Father’s motion to modify custody
and parenting time. Id. at *5-*6.
[3] Following this Court’s remand to the trial court, on May 5, 2017, the trial court
issued a new order. After engaging in a lengthy analysis and addressing all
required factors, the trial court ended up in the same place—it ordered that B.B.
is not to relocate with Mother, that Father is to have sole physical custody of
B.B., and that the parents will continue to share joint legal custody. Mother
now appeals.
Discussion and Decision
[4] Mother argues that the trial court’s order did not comply with this Court’s
directive in the first appeal. She also appears to argue that even if the trial
court’s findings are compliant, the evidence does not support the trial court’s
conclusions. In reviewing the trial court’s order, we first determine whether the
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evidence supports the findings; and second, whether the findings support the
judgment. Harris v. Harris, 800 N.E.2d 930, 934-35 (Ind. Ct. App. 2003). But
we owe no deference to the trial court’s conclusions of law and will review
those conclusions de novo. Id. at 935. We will reverse only if the trial court’s
order is clearly erroneous. Id.
[5] As we explained in the first appeal:
If a parent intends to relocate, she must file a notice of her intent
to move with the court that issued the custody or parenting time
order already in place. Ind. Code § 31-17-2.2-1(a). In response,
the non-relocating parent may file a motion seeking a temporary
or permanent order to prevent the relocation of the child. I.C.
§ 31-17-2.2-5. In many cases, one or both parents will also file a
petition to modify custody and/or parenting time as a result of
the relocation. In ruling on a petition to modify in the context of
a relocating parent, the trial court “shall” take the following
factors into consideration:
(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.
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(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) (emphasis added). . . . [There is also] a
statutory burden-shifting analysis required when a motion
seeking an order to prevent the relocation of a child is filed:
(c) The relocating individual has the burden of proof
that the proposed relocation is made in good faith
and for a legitimate reason.
(d) If the relocating individual meets the burden of
proof under subsection (c), the burden shifts to the
nonrelocating parent to show that the proposed
relocation is not in the best interest of the child.
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I.C. § 3-17-2.2-5.[1]
S.B. I, at *3-*4.
[6] First, the trial court considered the distance involved in the proposed change of
residence. It found that before Mother’s relocation, she and Father lived
approximately twenty minutes away from each other; afterwards, they lived
approximately forty-five minutes away from each other. The evidence supports
this finding, and we also note that Mother works, Father lives and works, and
B.B. goes to school, in Valparaiso, which is forty-five minutes away from
Mother’s new residence in North Judson.
[7] Second, the trial court considered the hardship and expense involved for Father
to exercise parenting time if relocation occurred. The trial court found as
follows:
a. Prior to Mother’s relocation to North Judson, Indiana,
Father had very little to no hardship or expense to exercise
parenting time with [B.B.] Because the parties lived in
such close proximity to each other before Mother moved,
picking up and dropping off [B.B.] for parenting time was
1
[1] With respect to the burden-shifting analysis, the trial court found before the first appeal that Mother
established that her proposed relocation was made in good faith and for a legitimate reason. We directed the
trial court to conduct the second step of the analysis, meaning that it should consider whether Father showed
that the proposed relocation is not in B.B.’s best interests. The trial court considered this portion of the
analysis as part of its general consideration of B.B.’s best interests. We will follow suit and consider it below.
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easy and inexpensive. Mother delivered [B.B.] to Father’s
house on her way to work and picked him up after work.
b. Mother proposes that she be allowed to relocate with
[B.B.] to North Judson on a permanent basis and that she
be awarded primary physical custody of [B.B.]
i. In this scenario, Mother also proposes that maternal
grandfather . . . be the individual who gets [B.B.] off
to school and who is there to receive [B.B.] at the
end of the school day. Grandfather would also
provide the after school care . . . until Mother
returns home from work at approximately 5:15 p.m.
ii. Mother believes that if Father wants to exercise
parenting time with [B.B.] every day, he can drive
to North Judson each day to do so. This would
involve Father driving 45 minutes (in good weather)
each way to spend the same or similar time with
[B.B.] after school. It would be impractical for
Father to have the time he currently has with [B.B.]
before school.
iii. The cost and hardship to Father would increase
drastically if Father had to drive to North Judson
and back every day . . . .
c. Awarding Father primary physical custody of [B.B.]
would allow him to preserve the same level of parenting
time to which both he and [B.B.] have become
accustomed. Additionally, since Mother works in Porter
County within minutes of Father’s residence, the burden
upon her to exercise her parenting time with [B.B.] before
and after school (before work and after work for Mother) is
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much less disruptive to all involved than Mother’s
scenario.
Appealed Order p. 6-7. The evidence in the record supports these findings.
[8] Third, the trial court considered the feasibility of preserving the relationship
between Father and B.B. if relocation occurred. The trial court found as
follows:
a. . . . Both parties have the financial resources to exercise
parenting time with [B.B.] regardless of which parent is
awarded custody.
b. However, the feasibility of preserving the relationship
between Father and [B.B.] through suitable parenting time
has already become alarmingly problematic . . . and it
concerns the Court that it will continue to cause issues if
Mother is permanently allowed to relocate with [B.B.] 45
minutes away from Father.
c. Mother has made it clear that she wants Grandfather to be
the constant in [B.B.’s] life. She wants him to serve in a
much larger role than Father by acting as the daycare
provider before and after school each day.
d. Since Mother decided that she needed to relocate to North
Judson, Grandfather has repeatedly accused Father of not
parenting [B.B.] adequately. Grandfather’s behavior does
not engender a sense of “preserving the relationship
between Father and [B.B.]” . . . Mother has done little to
quell Grandfather’s behavior.
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e. Finally, Mother’s own stream of accusations—including
the false allegations of sexual misconduct she made against
Father—demonstrated the lengths she would go to cut
Father out of [B.B.’s] life.
Id. at 7-8. The evidence in the record supports these findings.
[9] Fourth, the trial court considered whether there is an established pattern of
conduct by Mother to thwart Father’s contact with B.B. The trial court found
as follows:
a. In December of 2014, Grandfather, the individual whom
Mother wanted as the “constant” in [B.B.’s] life, began
hurling accusations at Father about his parenting of [B.B.]
i. Grandfather alleged Father was not feeding [B.B.]
properly.
ii. He alleged Father did not clothe [B.B.] adequately
which caused [B.B.] to get sick.
iii. Grandfather claimed that only Grandfather could
take proper care of [B.B.]
iv. When Father stopped forfeiting his own parenting
time to allow Grandfather to have time with [B.B.],
Grandfather stated, “. . . one way or another, I’m
going to see my grandchild.”
b. One week after Grandfather made that statement, Mother
contacted DCS alleging:
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i. Father was not making [B.B.] use the car seat.
ii. Father was allowing [B.B.] to drive on I-9.
iii. Father’s dog was aggressive and biting [B.B.]
iv. Father made Play-Doh feces and photographed it
coming out of [B.B.’s] pants and posted it on
Facebook.
v. Father painted profanity on the walls of his home.
c. After DCS investigated Mother’s allegations and found
them unsubstantiated, Mother failed to allow Father to
resume his parenting time with [B.B.] Mother claimed the
DCS hotline staff member told her not to allow Father to
have parenting time . . . ; however, the DCS
caseworker . . . indicated that when a case is
unsubstantiated, they encourage parents to abide by any
custody/parenting time orders that are in place. The
caseworker stated that Mother was upset the allegations
against Father were unsubstantiated. The caseworker also
testified that Mother hung up on her.
d. . . . Mother [also reported] her allegations against Father
to [law enforcement]. Mother claimed [a lieutenant] told
her not to let Father have [B.B.] for parenting time.
e. Mother claimed someone at the prosecutor’s office told her
not to allow Father to have parenting time with [B.B.]
f. Despite DCS finding the matter unsubstantiated and the
police investigation being concluded (without any action
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toward Father), Mother continued to deny Father’s
parenting time.
g. Even after this Court ordered her to resume Father’s
parenting time, Mother refused to do so. Father had to
seek the assistance of law enforcement to enforce the
Court’s parenting time order.
***
j. Since Mother wanted to have primary physical custody of
[B.B.] and have Grandfather serve as the “constant” in
[B.B.’s] life, Mother has also accused Father of [five
separate instances of neglect].
k. Mother has shown herself to be inflexible in compromising
with Father or in attempting to resolve her concerns with
Father.
***
m. . . . [Two law enforcement officers and a DCS caseworker]
expressed their frustration to the GAL about the manner
in which Mother was handling the situation—not allowing
Father parenting time despite the investigations being
concluded.
n. On the other hand, from the time the parties divorced until
Mother and Grandfather began accusing Father of neglect,
Father shared his parenting time with Grandfather to keep
the relationship between [B.B.] and Grandfather intact. . . .
This demonstrates to the Court Father’s willingness to
include not only Mother but her family in [B.B.’s] life.
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o. Father has also been willing to forego his parenting time
with [B.B.] at Mother’s request if Mother wanted to have
[B.B.] for a special occasion.
Id. at 8-11. The evidence in the record supports these findings.
[10] Fifth, the trial court considered Mother’s reasons for relocating and Father’s
reasons for opposing the relocation. Mother wanted to relocate because her
“lease had expired on her residence, her roommate had moved away, and the
rent was going to increase to an extent that Mother could not afford.” Id. at 11.
Father opposed the relocation for the following “well-founded” reasons:
a. Father spent the majority of [B.B.’s] waking hours with
him. Since [B.B.] was an infant, Father fed him and cared
for him.
***
c. Father does not believe it is best for [B.B.] to suddenly
have grandfather take over Father’s role as a caretaker on
a day-to-day basis.
d. It seems illogical to enroll [B.B.] in a school in North
Judson that is 45 minutes away from Mother[’s place of
employment] and Father when Father lives approximately
10 minutes from the . . . [s]chool [B.B.] would attend [if he
remained with Father] and Mother works nearby.
e. Father is available to provide all the care [B.B.] needs
before and after school. Because Father is self-employed
and has very flexible hours, Father is available to care for
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[B.B.] every day. The parties do not need Grandfather to
serve in that capacity.
Id. at 12. The evidence in the record supports these findings.
[11] Finally, the trial court considered the best interests of B.B. The trial court
found that Father met his burden of showing that a permanent relocation of
B.B. to live with Mother is not in B.B.’s best interests and that awarding
physical custody of B.B. to Father is in the child’s best interests. These
conclusions are based on the following findings:
a. Father works out of his home. . . . Father has plenty of
time to get his work done, especially with [B.B.] in school.
But even if [B.B.] was ill, Father has the ability to adjust
his . . .work schedule to accommodate [B.B.]
b. Father lives in a 3,000 square foot home with three
bedrooms, and two bathrooms. . . . Father lives within ten
minutes of most of his relatives. . . .
c. . . . Since [B.B.] began attending school [in father’s school
district], [B.B.] has shown steady improvement in his
performance from first to second semester. Father has
been very active with [B.B.’s] education and has shown
consistency with communicating with [B.B.’s] teachers
when necessary.
***
e. Father fully cooperated with DCS, the Porter County
Sheriff’s Department and the GAL during the course of
their investigations into the allegations Mother raised
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against Father. Father contacted the DCS caseworker
within 15 minutes of learning there was a complaint
made. . . .
f. Mother, on the other hand, initially denied knowing about
the DCS complaint when Father first contacted her about
it. When Mother talked to the caseworker on the phone,
Mother said the caseworker hung up on her. When
Mother referred to the [law enforcement] investigation,
Mother found the department “very unhelpful” the first
time around. When Mother talked to Father about the
GAL, she said, “Can’t we just get rid of her? F—k
her.” . . . The GAL had little to no contact with Mother
for the six months preceding the hearing. . . . Mother took
issue or had problems with everyone involved.
g. Mother’s credibility is extremely suspect as well. First, she
admitted that she knew Father had not engaged in sexual
misconduct toward [B.B.] but filed the paperwork
anyway . . . . She signed it under oath despite knowing it
was false. Second, Mother testified that once she received
the final call that everything had been dropped with the
police and everything else, Father could pick up [B.B.] that
Friday and resume his normal parenting time. In reality,
Father had to have the additional assistance of the police
to ultimately resume his regular parenting time due to
Mother’s refusal to comply.
h. Despite Father being cleared of as many neglect
allegations as Mother and Grandfather could muster,
Mother still testified that [B.B.] would be safer with
Mother and Grandfather than Father. Coincidentally,
when the GAL conducted her investigation [in which she
interviewed at least fourteen people], the only people who
had concerns about Father’s parenting skills were Mother
and maternal grandparents. It is not in [B.B.’s] best
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interest to live in a household with a parent who thinks
that she is more entitled to have custody or better able to
parent [B.B.] because she is the mother. . . . The attitudes
exhibited by Mother and Grandfather create an
environment that not only minimizes Father’s importance
and role in [B.B.’s] life but also makes it necessary for
Father to continuously defend against Mother’s and
Grandfather’s newest accusation.
Id. at 18-20. The evidence in the record supports these findings.
[12] It is readily apparent in reading the trial court’s order that it complied with both
the letter and spirit of our instructions in the first appeal. It considered all
required statutory factors and applied the burden-shifting analysis, going into
thorough detail along the way. We find that the evidence in the record supports
all the trial court’s findings of fact and that those findings, in turn, support the
trial court’s decision to award physical custody of B.B. to Father and to deny
Mother’s motion to relocate with the child. Mother’s arguments to the contrary
amount to requests that we reweigh the evidence and second-guess the trial
court’s assessment of the parties and witnesses—requests we decline.
[13] At the end of the Appellee’s Brief, Father requested the imposition of sanctions,
including appellate attorney fees, because of “Mother’s frivolous and vexatious
appeal . . . .” Appellee’s Br. p. 20. We are tempted to grant this request given
Mother’s provably false contention that the trial court failed to comply with this
Court’s instructions. We are mindful, however, of the significant effect on
Mother of the trial court’s order, which divested her of custody of her child, and
understand that as a parent, she is taking all actions within her power to regain
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that custody. Given that reality, we decline to order attorney fees or other
sanctions based on this appeal.
[14] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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In Re: The Marriage of S.B. v. J.B. (mem. dec.)
Combined Opinion