S.A.W. v. K.L.W. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 01 2019, 6:17 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing 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
Bryan L. Ciyou Jonathan R. Deenik
Ciyou & Dixon, P.C. Deenik Lowe, LLC
Indianapolis, Indiana Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
S.A.W., October 1, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-DR-1002
v. Appeal from the Henry Circuit
Court
K.L.W., The Honorable Bob A. Witham,
Appellee-Respondent. Judge
Trial Court Cause No.
33C01-1510-DR-214
Bailey, Judge.
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Case Summary
[1] Scott Weaver (“Father”) appeals the trial court order, following an evidentiary
hearing, granting Kelli L. Weaver’s (“Mother”) request to relocate with their
child, L.W. (“Child”), and denying Father’s motion to modify child custody,
parenting time, and child support. Father raises two issues which we
consolidate and restate as whether the trial court clearly erred by granting
Mother’s request to relocate with Child and denying Father’s motion to modify
custody without sufficient evidence on all relevant statutory factors.
[2] We affirm.
Facts and Procedural History
[3] The parties were married on July 15, 2006, and Child was born on March 10,
2011. On October 19, 2015, Father filed a petition for dissolution of marriage.
The parties entered into a settlement agreement which was approved by the trial
court and incorporated into a decree of dissolution on September 27, 2016.
Under the agreed settlement, the parties shared joint legal custody of Child,
Mother had physical custody of Child, and Father had parenting time as the
parties agreed or no less than every Tuesday and Thursday evening for four
hours and every other weekend. Both parties resided in Henry County,
Indiana.
[4] On March 12, 2018, Mother filed her notice of intent to move residence in
which she gave notice to Father and the trial court that she intended to move
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with Child on or around June 2018 to Putnam or Clay County, Indiana. The
notice stated “[t]he reason for the permanent relocation include[s] better job
opportunities for myself and my fiancé.” App. Vol. II at 62. The notice further
stated that Mother would “make every effort to keep up on the current
parenting time but the distance and time in school may affect the parenting
time.” Id. Mother further indicated she was “willing to go a minimum of half
the distance of driving and meet at a prearranged location.” Id.
[5] On May 4, 2018, Father filed his objection to Mother’s relocation with Child
and a motion to modify custody, parenting time, and child support. Father also
sought an order enjoining the parties from moving Child pending a decision of
the court, and, on May 7, the court granted that motion and referred the matter
to mediation.
[6] On May 17, Mother filed an amended notice of intent to move residence in
which she informed the Court that she would be relocating to an address in
Cloverdale, Putnam County, on June 15, 2018. Mother stated the reasons for
relocation were that “she is engaged, planning to get remarried, graduating
from college[,] and has job opportunities [near the new location] that far exceed
the opportunities that exist in the current area [where she lives].” Id. at 74.
Mother also stated that “the minor child needs additional support in school
which can better be supplied by the school district in which Mother plans to
relocate.” Id. at 74-75. On May 18, Father filed his amended objection to
relocation and motion to modify custody, parenting time, and child support.
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[7] On June 13, 2018, the parties filed their “Agreed Entry Regarding [Mother’s]
Temporary Relocation,” in which they agreed Mother could relocate herself
and Child to an address in Knightstown, Henry County, in June of 2018, and
Father’s parenting time would remain unchanged, “pending a full evidentiary
hearing in this matter on her relocation.” Id. at 5, 81. The trial court approved
the Agreed Entry on the same date.
[8] On December 11, 2018, following an unsuccessful mediation, the trial court
held an evidentiary hearing on the pending motions. At the hearing, Mother
testified that she and Child still lived in Henry County, and Child still attended
Tri Elementary, the Henry County school he had always attended. Mother
testified she and Child spent the night at her fiancé’s house in Cloverdale every
other weekend. However, Mother testified she wished to move with Child to
Cloverdale in Putnam County because her fiancé lives there, her parents and
siblings live close to there, and her and her fiancé’s job opportunities are better
there. Specifically as to the latter reason, Mother testified that, since she had
obtained her Bachelor’s degree in healthcare administration in May, she was
now “eligible for a promotion as a practice manager or an executive director
position” in her field “in the Cloverdale area.” Tr. at 7-8. Mother testified that
the “promotion” position would pay “[c]lose to forty-five thousand dollars a
year,” but she had been unable to find such a high paying similar position in the
Henry County area. Id. at 8. Mother was applying for jobs near Cloverdale.
Id. at 42, 44. Mother also testified that her fiancé was making ten dollars an
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hour more at his job near Cloverdale than at the job he had previously held in
Henry County.
[9] Mother testified that Child’s Henry County school “labeled him as autistic”
based on some behavioral issues, and Child has had an Individualized
Education Plan (IEP) since he was in kindergarten. Id. at 16. Child’s IEP
entitles him to “extra services” at school. Id. Mother testified that Central
Elementary, the school Child would attend in Putnam County, is able to
provide Child services pursuant to his IEP. Mother also admitted into
evidence, without objection, documents from the Indiana Department of
Education stating that Central Elementary school had a “grade” from the State
of “B,” while Tri Elementary had a “grade” of “D.” Id. at 23-24; Ex. at 110-
114.
[10] Mother testified that Child does not have many friends at his school in Henry
County, but he could have opportunities to regularly interact with his cousins—
with whom he is “close”—if he lived in Cloverdale. Id. at 34. Mother also
testified that if Child was living in Cloverdale, he would be closer to “Brain
Balance,” a program that helps Child with “processing … what is going on.”
Id. at 13. Mother testified that Child’s “emotional level” and behavior has
improved since he has been attending sessions at Brain Balance, but that
program is not located near Henry County. Id. at 19.
[11] Mother testified that Cloverdale is one and a half hours’ drive from where
Father lives in Henry County, and that she would be willing to meet Father half
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way in between their homes to facilitate Father’s weekend parenting times. She
testified that she would be willing to take Child one way to Father in Henry
County on his weekday parenting time. Father testified that the only basis for
his request to modify custody was Mother’s relocation, but that he and Mother
had worked well and flexibly together regarding parenting time in the past.
Father further testified that he did not believe Mother, by relocating,
“malicious[ly] inten[ded]” to minimize his parenting time with Child. Id. at
122. We will provide additional facts as necessary.
[12] On April 5, 2019, the court issued its order granting Mother’s request to
relocate with Child at the conclusion of the 2018-19 school year and ordering
that Mother continued to have primary physical custody and Father continued
to have parenting time “as the parties can agree.” Id. at 8. The court ordered
that Father shall have parenting time according to the Indiana Parenting Time
Guidelines, Subsection II, subpart D,1 in the event the parties cannot agree.
Father now appeals.
1
Ind. Parenting Time Guideline II (D) provides that “regular parenting time” shall include alternating
weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and one evening per week for a period of up to
four hours.
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Discussion and Decision
Standard of Review
[13] Neither party requested special findings, and the trial court did not make any
such findings sua sponte. See Ind. Trial Rule 52.2 When the trial court has not
made findings or conclusions, we review its decision as a general judgment and,
without reweighing evidence or considering witness credibility,
affirm if sustainable upon any theory consistent with the
evidence. Judgments in custody matters typically turn on
essentially factual determinations and will be set aside only when
they are clearly erroneous. We will not substitute our own
judgment if any evidence or legitimate inferences support the trial
court’s judgment.
Baxendale v. Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008) (citations and
quotations omitted); see also H.H., 3 N.E.3d at 37 (“[W]hen reviewing a
determination regarding the best interests of a child for relocation purposes, we
‘view the evidence in the light most favorable to the trial court’s decision and
defer to the trial court’s weighing of the evidence.’” (quoting T.L. v. J.L., 950
N.E.2d 779, 788–89 (Ind.Ct.App.2011))).
2
Nor was the trial court required to do so. “[W]hile the trial court is to consider all relevant factors [in
determining whether relocation is in the Child’s best interest], the trial is not necessarily required to make
specific findings on each factor unless requested to do so by the parties.” H.H. v. A.A., 3 N.E.3d 30, 37 (Ind.
Ct. App. 2014); see also In re Marriage of Harpenau, 17 N.E.3d 342, 347 n.3 (Ind. Ct. App. 2014) (citation
omitted) (“In modifying custody, the trial court is not required to issue special findings unless requested by a
party.”).
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[14] Moreover,
there is a longstanding policy in our State that appellate courts
should defer to the determinations of the trial courts in family
law matters. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). We
accord this deference because trial courts directly interact with
the parties and are thus in a superior position “to assess
credibility and character through both factual testimony and
intuitive discernment.” Id. Conversely, “appellate 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.’” D.C. [v. J.A.C.], 977 N.E.2d [951,] 956–57 [(Ind.
2012)] (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)).
Gold v. Weather, 14 N.E.3d 836, 841 (Ind. Ct. App. 2014).
Relocation of Custodial Parent
[15] Indiana Code Sections 31-17-2.2-0.5 through 31-17-2.2-6 govern the proposed
relocation of a custodial parent. A parent intending to relocate with a child
must file notice of that intention, Ind. Code § 31-17-2.2-1, and the
nonrelocating parent must file a response in which he or she may object to the
relocation and file a motion to modify custody, I.C. § 31-17-2.2-1, -5.
Following an objection to relocation and corresponding motion to modify
custody, the relocating parent must prove “that the proposed relocation is made
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in good faith and for a legitimate purpose.” I.C. § 31-17-2.2-5(c).3 If the
relocating parent meets that burden of proof, “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(d).4
[16] In determining whether to permit relocation of the child or, instead, modify
custody, the trial court must take into account the following:
(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating
individual to exercise parenting time....
(3) The feasibility of preserving the relationship between the
nonrelocating individual and the child through suitable parenting
time ... 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:
3
Effective July 1, 2019, this provision is contained in subsection (e) of Indiana Code Section 31-17-2.2-5.
P.L. 186-2019, SEC. 14.
4
Effective July 1, 2019, this provision is contained in subsection (f) of Indiana Code Section 31-17-2.2-5. Id.
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(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). The “other factors affecting the best interest of the child”
include those factors set forth for custody determinations and modifications
under Indiana Code Section 31-17-2-8.5 Baxendale, 878 N.E.2d at 1257.
Evidence of Good Faith and Legitimate Reason
[17] To prove good faith and a legitimate reason for relocation, the relocating parent
must “demonstrate an objective basis—that is, more than a mere pretext—for
relocating.” Gold, 14 N.E.3d at 842 (quotation and citation omitted). Good
faith and legitimate reasons for relocation include moving to live closer to
family members, for financial reasons, and for employment opportunities. Id.;
see also, e.g., H.H., 3 N.E.3d at 36 (concluding Mother’s desire to relocate in
order to “live and create a family life with” her current husband was “made in
good faith and for a legitimate purpose”); Gilbert v. Gilbert, 7 N.E.3d 316, 320-21
5
Those factors include: (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 the child’s parent or parents, the child’s
sibling, and any other person who may significantly affect the child’s best interests; (5) the child’s adjustment
to the child’s home, school, and community; (6) the mental and physical health of all individuals involved;
(7) evidence of a pattern of domestic or family violence by either parent; and (8) evidence that the child has
been cared for by a de facto custodian. I.C. § 31-17-2-8.
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(Ind. Ct. App. 2014) (concluding Mother’s desire to relocate with her fiancé to a
larger house to accommodate an expanding family and to “a better school
district” was “a good faith and legitimate reason for moving”). And, although
the trial court must consider the distance of the proposed relocation and the
hardships and expense for the nonrelocating parent to exercise parenting time,
an inconvenience caused by the relocation—even if it is out of state—does not
alone warrant custody modification and denial of the request to relocate.
Fridley v. Fridley, 748 N.E.2d 939, 941 (Ind. Ct. App. 2001) (citing Hanks v.
Arnold, 674 N.E.2d 1005, 1007 (Ind. Ct. App. 1996)).
[18] Here, the evidence established that Mother wished to relocate approximately an
hour and a half away from Father’s residence for the legitimate purposes of
having better job opportunities, moving Child to a better school district, being
closer to her family, and consolidating her family with her fiancé’s family in
one location. There was also substantial evidence that Mother did not have a
pattern of attempting to limit Father’s contact with Child; rather, Father
testified that Mother “work[ed] well” with him and was “flexible” with him
regarding parenting time. Tr. at 89. Nor was there any evidence of bad faith on
Mother’s part; Father testified that he did not believe she wished to relocate in
order to limit his parenting time. Id. at 122. Thus, the record evidence
supported the trial court’s conclusion that the request for relocation was made
in good faith and for legitimate reasons. Father’s contention to the contrary is a
request that we reweigh the evidence and substitute our judgment for that of the
trial court, which we will not do. Baxendale, 878 N.E.2d at 1257-58.
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Evidence of Best Interest of Child
[19] As Mother met her burden of proving her wish to move was made in good faith
and for legitimate reasons, the burden shifted to Father to prove that the move
would not be in Child’s best interest. To meet that burden, Father was required
to present evidence on each factor enumerated in Indiana Code Section 31-17-
2.2-1(b). Harpenau, 17 N.E.3d at 347. The driving distance between Father’s
residence and Mother’s proposed new residence was one and a half hours.
Mother testified she was willing to drive Child half way between the two
locations to facilitate parenting time. And, although the evidence indicated that
Father would have to travel forty-five minutes each way to exercise his
parenting time, Father presented no evidence that he was unable to do so. The
evidence indicates that the hardship and expense caused by the distance of the
relocation would not be extreme. I.C. § 31-17-2.2-1(b)(1) and (2); cf., e.g., H.S.
v. S.K. (In re paternity of X.A.S.), 928 N.E.2d 222, 226 (Ind. Ct. App. 2010)
(finding, in a case permitting relocation, that hardship and expense caused by
relocation were extreme because nonrelocating parent would have to travel by
plane and pay for lodging out of state to visit child), trans denied.
[20] Although Father presented evidence indicating that exercising his parenting
time would be more inconvenient if Mother relocated, he provided no evidence
that he would not be able to preserve his relationship with Child. I.C. § 31-17-
2.2-1(b)(3). Rather, the evidence established that—despite the inconvenience of
a longer drive time—Father could still have parenting time with Child during
the weekdays, every other weekend, and at all other times he had previously
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had such time. And the parties do not dispute that Mother’s “pattern of
conduct” regarding Father’s parenting time was to promote contact with Child,
rather than thwart it. I.C. § 31-17-2.2-1(b)(4).
[21] As noted above, Mother provided evidence that her reasons for relocating were
that she had better job opportunities in the new location, and the new location
had a better school district and was closer to her fiancé, her parents, and her
siblings and their children. I.C. § 31-17-2.2-1(b)(5)(A). Father presented
evidence that he opposed the relocation because it would require him to spend
more time in the car to facilitate parenting time and Child would see less of his
friends and relatives, such as his half-siblings. I.C. § 31-17-2.2-1(b)(5)(B).
However, Father presented no evidence that Child’s friends and relatives could
not see Child every other weekend at Father’s house as they always had or
come with Father to see Child during weekdays.
[22] Father also testified that he believed the relocation was not in Child’s best
interest because he opined that Child would not “fit in very well” at a new
school, Tr. at 102, and it would be “too much for [Child]” to break up his
current routine, id. at 103. However, Father presented no evidence to support
those assertions. Rather, the evidence indicated that, if Child relocated, he
would attend a good school that could accommodate his needs, and he would
have consistent contact with cousins around his age, with whom he was close.
The evidence also showed that Child’s behavior had improved recently, despite
his recent move within Henry County and his alternating weekend stays with
Mother and her fiancé’s family in Putnam County. Thus, Father did not
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present sufficient evidence that his reasons for opposing the relocation
supported denial of relocation and modification of custody. I.C. § 31-17-2.2-
1(b)(5)(B).
[23] And the record evidence supported the trial court’s determination that
relocation was otherwise in Child’s best interest. I.C. § 31-17-2.2-1(b)(6); I.C. §
31-17-2-8. The evidence indicated that Child, who was age seven, was loved
and cared for by both parents, but that Mother was the primary caregiver.
Child has a close relationship with his relatives on Father’s side, but he is also
close with his maternal cousins. Although Child had some behavioral issues,
the evidence showed that Mother had obtained treatment for Child at a place
close to the proposed new residence and that Child’s behavioral issues were
improving. Although Child has some special needs at school, the evidence
indicated that Child would be relocated in a better school district that could also
accommodate his needs. And the evidence indicated that Child was adjusting
to recent changes in his routine without additional behavioral problems.
[24] Father failed to carry his burden of proving that relocation was not in Child’s
best interest. Viewing the evidence in the light most favorable to the judgment,
as we must, the evidence supports the trial court’s determination that relocation
was in Child’s best interest. H.H., 3 N.E.3d at 37.
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Conclusion
[25] Considering the evidence favorable to the trial court’s judgment and the
reasonable inferences flowing therefrom, we hold there was evidence in the
record to support the trial court’s decision to grant Mother’s request to relocate
and deny Father’s motion to modify custody. Father essentially requests that
we reweigh the evidence in his favor, which we cannot do. The judgment of
the trial court was not clearly erroneous.
[26] Affirmed.
Najam, J., and May, J., concur.
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