In re the Paternity of G.Y., Minor Child, C.R. v. A.Y. (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 14 2017, 8:55 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Alan D. Wilson David W. Stone IV
Kokomo, Indiana STONE Law Office & Legal
Research
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of G.Y., December 14, 2017
Minor Child Court of Appeals Case No.
27A02-1705-JP-1110
Appeal from the Grant Circuit
C.R., Court
Appellant, The Honorable Mark E. Spitzer,
Judge
v.
Trial Court Cause No.
27C01-1304-JP-40
A.Y.,
Appellee.
Brown, Judge.
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[1] C.R. (“Mother”) appeals from the order of the trial court awarding custody of
G.Y. to A.Y. (“Father”). Mother raises two issues which we consolidate and
restate as whether the court erred in not allowing the relocation of G.Y. We
remand.
Facts and Procedural History
[2] On April 26, 2013, the trial court entered an agreed order on paternity finding
that Father was the father of G.Y., who was born in 2010, and that Mother and
Father stipulated to a joint physical and legal custody arrangement of G.Y. On
February 27, 2014, a Mediation Agreement was filed which stated in part that
the parties shall share joint legal custody, and the court approved the
agreement.
[3] On June 1, 2015, Father filed a petition to modify parenting time. On
November 12, 2015, the court appointed a guardian ad litem. On August 10,
2016, guardian ad litem William Myers (“GAL Myers”) filed a report
indicating that both parents had a solid and proper relationship with G.Y. and
that he had no concerns other than the parents’ inability to communicate with
one another regarding G.Y.’s needs. On September 7, 2016, Father filed a
Petition for Joint Physical Custody or In the Alternative Petition for Additional
Parenting Time.
[4] On December 16, 2016, Father filed a petition to modify custody which
requested full legal and physical custody of G.Y. That same day, the court
scheduled a hearing on the petition to modify custody for April 19, 2017.
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[5] On March 20, 2017, Mother filed a notice of intent to relocate to Winston-
Salem, North Carolina, which stated that Mother’s husband had a job as a
regional manager for Jimmy John’s, his employment relocated him there, and
the job provided the family with better opportunities and more income.
[6] On April 17, 2017, GAL Myers filed a report in which he stated that he was
again contacted by the parties through their respective attorneys in October
2016 regarding “yet another complaint of alleged abuse by” Father on G.Y.,
that GAL Myers attempted to reach out to Mother, through her attorney,
regarding the complaint but he had yet to hear from her. Appellant’s Appendix
II at 45. GAL Myers also reported that he had no concerns regarding Father’s
parenting abilities and that he did not believe that allowing G.Y. to move to
North Carolina was in G.Y.’s best interests.
[7] On April 19, 2017, the court held the scheduled hearing. Without objection
from Mother’s counsel, GAL Myers testified and his April 17, 2017 report was
admitted into evidence. During cross-examination by Mother’s counsel, GAL
Myers testified that the court did not order his supplemental report. The court
heard testimony from Desiree Hartwig, a family case manager, Marion Police
Officer Joshua Swanson, Father’s pastor, Father’s coworker, Father’s father-in-
law, Father’s wife, Father’s mother, Father, Mother’s mother, Mother, and
Mother’s husband.
[8] On April 27, 2017, the court entered its Order on Petition to Modify Custody.
The order states:
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On April 19, 2017, [Father] and [Mother] appeared in person and
by counsel for hearing on the various petitions of the parties, and
ultimately and most significantly, Mother’s Notice of Intent to
Relocate.[1] The Court now enters the following Order.
Mother and Father currently exercise joint legal custody of their
six-year-old son, [G.Y.]. The evidence indicates that both
Mother and Father are good parents to [G.Y.], but have been
unable to communicate well despite the joint legal custody
arrangement. At this point, Mother and Father have declined to
speak with each other personally, but will only communicate via
e-mail. This is due in large part to Mother’s numerous
complaints to legal authorities alleging various forms of abuse,
which have in each instance been found to be unsubstantiated.
The parties have been engaged in an extended battle over
parenting time, support, and custody since mid-2015. The matter
was set for hearing on several occasions, but was continued
several times to involve a guardian ad litem and accommodate
discovery as other issues arose. The case was finally set for a one
day custody trial on April 19. On March 20, 30 days before the
trial, Mother filed her Notice of Intent to Relocate with the
Court. In that Notice, she indicated that she would be moving to
Winston-Salem, North Carolina. The Notice was the first
information about any move that Mother gave to Father
(although he had learned that a move may be in the offing shortly
before the Notice through comments made by [G.Y.]), and prior
to the hearing, despite the joint custody relationship, Mother had
not shared information with Father about the specifics of the
1
The court’s order contained a footnote which states:
There were several motions or petitions filed on both sides relating to custody, support, and
parenting time. Those petitions were in essence rendered moot by Mother’s relocation
notice, which of necessity will require a re-examination of the current custody, parenting
time, and support arrangement. Thus, this Order is directed to the Notice of Intent to
Relocate and its implications.
Appellant’s Appendix II at 16.
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move such as the name and location of a new school, potential
health care providers, potential child care providers, etc.
The reason that Mother indicated for her move was to follow her
husband . . . who had taken a job with Jimmy John’s as a store
manager in Winston-Salem. The standard for evaluating the
move of a parent is set forth in I.C. 31-17-2.2. When presented
with a Notice of Intent to Relocate, a court’s first task is to
determine if the proposed move is undertaken in good faith.
Nelson v. Nelson, 10 N.E.3d 1283, 1286-1287 (Ind. Ct. App. 2014).
Legitimate justifications for a relocation include employment
opportunities, financial considerations, and proximity to family.
Id. at 1286. In this case, however, there are facts which might
support the contention that Mother and her husband’s move is
not in good faith. The timing of the move, shortly before the
custody trial, is concerning. In addition, the fact that Mother
didn’t discuss with her joint custodian something as momentous
as a 500-mile move taking their child nine and one-half hours
away is irresponsible at best and intentionally deceptive at worst.
Finally, the proffered reason – a new job – raises its own
questions, in that [Mother’s husband] previously worked as a
manager for Jimmy John’s in Marion, and had other
opportunities to work for a Jimmy John’s in Indianapolis.
Certainly, there are other Jimmy John’s restaurants which are
closer to Grant County, Indiana. Nonetheless, both Mother and
[Mother’s husband] testified that they moved for the job, and
certainly [Mother’s husband] is working at the new job. Thus,
the Court will accept at face value Mother’s testimony that the
move is being made in good faith, particularly since the second
prong of the analysis is outcome-determinative.
The second prong of the analysis is whether the move would be
within the best interests of the child, a burden which is borne by
Mother as the relocating parent. Nelson, supra, 10 N.E.3d at
1288. Our Supreme Court has noted that there is no blanket rule
that a relocation that deprives a parent of time with a child is
always against the best interest of the child. D.C. v. J.A.C., 977
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N.E.2d 951 (Ind. 2012). The Court in Nelson noted that the court
should consider the factors in I.C. § 31-17-2.2-1 and the best
interests factors considered in making an initial custody
determination in I.C. § 31-17-2-8. Nelson, supra, 10 N.E.3d at
1288. Evidence was presented on many of these factors at trial.
There is certainly a significant distance and travel time involved
in parenting time and custody with the move – the joint custody
relationship will be unworkable, even if it could be salvaged
through significantly improved communication. [G.Y.] has close
ties with many extended family members in Grant County, and
those ties are extraordinary as he spends time each week with
extended family on both parents’ sides. While Mother has
relatives in North Carolina or the surrounding states, most are
not currently close to [G.Y.] and are a significant drive away
from Winston-Salem. [G.Y.] is also a regular participant at his
church and church youth groups, and attends school in Grant
County. Certainly, there was evidence that the move would
result in hardship on the non-moving parent (Father). Further,
the guardian ad litem testified that in his opinion, a change of
custody would be appropriate under the circumstances.
There are countervailing considerations as well. [G.Y.’s] half-
brother will be moving with his parents, and there is evidence
that he and [G.Y.] are closely bonded. If, as Mother asserts, [her
husband’s] job opportunity leads to opportunities for
advancement, it would provide financial stability for their
household which has experienced financial instability and
personal bankruptcy in the past. Such financial stability would
certainly be a benefit to [G.Y.’s] future.
Considering the factors set forth in the relocation statute, the
Court finds that on balance, the best interests of the child dictate
sole legal custody to be with Father and Mother to receive
parenting time according to the Parenting Time Guidelines,
when distance is a factor, unless the parties agree to a different
arrangement. The Court comes to this conclusion, mindful that
“[e]ven two parents who are exceptional on an individual basis
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when it comes to raising their children should not be granted, or
allowed to maintain, joint legal custody over the children if it has
been demonstrated . . . that those parents cannot work and
communicate together to raise the children.[”] Carmichael v.
Siegel, 754 N.E.2d 619, 636 (Ind. Ct. App. 2001). Unfortunately,
“a joint custody order may simply provide a framework for the
parents to continue the conflict which brought them to divorce in
the first place. The conflict would just be focused solely on the
children.” Barteau and Hopkins, Joint Custody in Indiana, 27 Res
Gestae 320, 324 (1984). Sadly, that has occurred in this case.
However, the parties are encouraged to attempt to repair that
relationship, and to discuss and, where appropriate, modify, the
holiday schedules if an alternate arrangement may be more
workable with the distance factors. In addition, Father shall
facilitate reasonable telecommunication between Mother and
[G.Y.], including but not limited to texting/instant messaging/e-
mail, FaceTime, or social media communication. On those
occasions where Mother is in Grant County visiting her family,
after reasonable notice, Father shall make reasonable
accommodations for Mother to spend additional parenting time
with [G.Y.]. Father also testified that he was aware of [G.Y.’s]
bond with Mother’s family, and the Court expects that Father
will facilitate grandparental parenting time in the future.
The change in custody triggers a recalculation of support.
Mother shall pay support in the amount of $39 per week,
together with the annual support fee. An Income Withholding
Order is authorized if Mother should gain employment. The
parties shall alternate the tax exemption with Mother entitled to
the tax exemption beginning in 2017. Pursuant to the
Guidelines, Mother shall pay the first $503.32 of uninsured
medical expenses and the balance shall be paid 75% by Father
and 25% by Mother. A Child Support Obligation Worksheet is
attached to this Order. Father shall make arrangements to add
[G.Y.] to his insurance as soon as the opportunity is available.
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Both parties requested fees. Father is gainfully employed, and
Mother is able to be gainfully employed but has chosen not to
work. Both parties shall pay their own fees.
Id. at 16-21 (footnotes omitted).
Discussion
[9] The issue is whether the trial court erred in not allowing the relocation of G.Y.
Mother asserts that the trial court erred by failing to shift the burden to Father
after it accepted Mother’s testimony that the move was being made in good
faith.2 Father contends that the trial court did not state that Mother failed to
meet her burden of proof that the move would be in G.Y.’s best interest and
that it simply determined that the award of custody to Father was in G.Y.’s best
interest.
[10] We observe that the court titled its order “ORDER ON PETITION TO
MODIFY CUSTODY,” yet noted that it was focusing on Mother’s notice of
intent to relocate. Id. at 16. Specifically, the court noted:
There were several motions or petitions filed on both sides
relating to custody, support, and parenting time. Those petitions
were in essence rendered moot by Mother’s relocation notice,
which of necessity will require a re-examination of the current
custody, parenting time, and support arrangement. Thus, this
2
Mother also contends that the trial court erred in admitting GAL Myers’s supplemental report. However,
Mother did not object to the admission of the report at the hearing. Accordingly, Mother has waived this
issue. See Bogner v. Bogner, 29 N.E.3d 733, 740 (Ind. 2015) (noting the “general principle that objections not
contemporaneously raised are waived”).
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Order is directed to the Notice of Intent to Relocate and its
implications.
Id.
[11] Generally, where a trial court makes specific findings of fact and conclusions of
law in an order modifying custody and preventing relocation, we “shall not set
aside the findings or judgment unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the
witnesses.” D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind. 2012) (quoting Best v. Best,
941 N.E.2d 499, 502 (Ind. 2011) (quoting Ind. Trial Rule 52(A))). Findings are
clearly erroneous only when the record contains no facts to support them either
directly or by inference. Id. An appellate court neither reweighs the evidence
nor reassesses witness credibility, and it views evidence most favorably to the
judgment. Id. “We review the trial court’s legal conclusions de novo.”
Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).
[12] Ind. Code §§ 31-17-2.2 govern the relocation of a custodial parent. Ind. Code §
31-17-2.2-5 governs the burden of proof and provides:
(a) Not later than sixty (60) days after receipt of the notice from
the relocating individual under IC 31-14-13-10 or this chapter, a
nonrelocating parent may file a motion seeking a temporary or
permanent order to prevent the relocation of a child.
(b) On the request of either party, the court shall hold a full
evidentiary hearing to grant or deny a relocation motion under
subsection (a).
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(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.
(e) If the nonrelocating parent fails to file a motion under
subsection (a), the relocating individual who has custody of the
child may relocate to the new residence.
(Emphasis added).
[13] In discussing the reason for Mother’s move, while the trial court expressed
some reservation regarding whether Mother’s proposed relocation was made in
good faith, it also observed that both Mother and Mother’s husband testified
that they moved for the job, found that Mother’s husband was working at the
new job, and accepted “at face value Mother’s testimony that the move is being
made in good faith.” Appellant’s Appendix Volume II at 18. The court stated
that the “second prong of the analysis is whether the move would be within the
best interests of the child, a burden which is borne by Mother as the relocating
parent.” Id. (citing Nelson v. Nelson, 10 N.E.3d 1283, 1288 (Ind. Ct. App.
2014)). However, the court in Nelson did not place the burden on the relocating
parent to demonstrate whether the move would be in the best interests of the
child. Rather, the court held that the relocating individual has the burden of
proof that the proposed relocation was made in good faith and for a legitimate
reason and that, if the relocating parent meets that burden, the burden shifts to
the nonrelocating parent to show that the proposed relocation is not in the best
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interest of the child. Nelson, 10 N.E.3d at 1286. Specifically, the court stated:
“Based on our conclusion that Mother’s move to South Carolina was made in
good faith and for a legitimate reason, we now have to determine if Father met
his burden in proving that relocation was not in the best interest of the Child.”
Id. at 1288. In light of Ind. Code § 31-17-2.2-5 and Nelson, we conclude that the
trial court improperly placed the burden on Mother to show that the proposed
relocation was in the best interest of G.Y.
[14] While the trial court found that “on balance, the best interests of the child
dictate sole legal custody to be with Father and Mother to receive parenting
time,” the court also recognized some “countervailing considerations”
including that G.Y.’s half-brother would be moving with his parents, there was
evidence that he and G.Y. were closely bonded, and that if the job opportunity
led to opportunities for advancement, it would provide financial stability for
their household. Appellant’s Appendix Volume II at 19. We note that
“[a]ppellate courts ‘are in a poor position to look at a cold transcript of the
record, and conclude that the trial judge, who saw the witnesses, observed their
demeanor, and scrutinized their testimony as it came from the witness stand,
did not properly understand the significance of the evidence.’” Steele-Giri v.
Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting Kirk v. Kirk, 770 N.E.2d 304,
307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850,
852 (1965))). Under the circumstances, we conclude that remand is necessary
for the trial court to analyze the issue utilizing the correct burden of proof based
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on the existing record. We express no opinion as to the outcome utilizing the
correct burden of proof.
Conclusion
[15] For the foregoing reasons, we remand for the trial court to consider the correct
burden of proof based on the existing record and to issue an amended order.
Najam, J., and Kirsch, J., concur.
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