Terry Honeycutt v. Ashten Harmon (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 06 2019, 8:53 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
Nicholas J. Hursh Justin R. Wall
Shambaugh, Kast, Beck & Wall Legal Services
Williams, LLP Huntington, Indiana
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry Honeycutt, December 6, 2019
Appellant-Respondent, Court of Appeals Case No.
19A-JP-1516
v. Appeal from the Wabash Circuit
Court
Ashten Harmon, The Honorable Robert R.
Appellee-Petitioner McCallen, III, Judge
Trial Court Cause No.
85C01-1608-JP-55
Baker, Judge.
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[1] Terry Honeycutt (Father) appeals the trial court’s order granting Ashten
Harmon’s (Mother) request to relocate A.H. (Child) to Florida, arguing that (1)
the relocation was not made in good faith and there were no legitimate reasons
supporting the relocation; and (2) relocation was not in Child’s best interests.
Finding no error, we affirm.
Facts
[2] Child was born to Father and Mother, who have never married, on October 16,
2007. Mother has since married her current husband (Mother’s Husband). Nine
years later, on December 16, 2016, Father and Mother filed a stipulation order
establishing paternity, support, payment of uninsured medical expenses,
visitations, and custody of Child, which was later approved by the trial court.
Pursuant to that stipulation order, Father and Mother agreed that Father and
Mother would retain joint legal custody of Child; Father would have Sunday,
Tuesday, and Thursday overnights with Child; Father and Mother would
coordinate transportation and care for Child; and Father would not pay child
support. See generally Appellant’s App. Vol. II p. 10-11.
[3] On January 4, 2019, Mother filed a notice of intent to relocate to Fort Myers,
Florida—roughly 1,200 miles away—by January 21, 2019. The notice stated
that Child would relocate with Mother to Florida in June 2019 after Child
completed the spring semester at his current school. Additionally, Mother
proffered the following reasons why they would be relocating and why she filed
with such short notice:
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a. [Mother’s Husband] was offered a partnership opportunity at a
land surveying company based out of Bonita Springs, FL;
b. [Mother’s Husband] was provided with a formal, written offer
of employment, and accepted same, on January 3, 2019;
c. [Mother’s Husband’s] offer requires him to begin employment
on February 4, 2019;
d. That the contract on [Mother’s] home is ending on January 31,
2019 and [Mother] is unable to remain in the home and will be
required to move her residence;
e. That [Mother] and [Mother’s Husband] do not have the
financial means to support the expenses of maintaining two
different residences, even on a temporary basis; and
f. That [Mother’s Husband] is the primary source of income and
[Mother] will need to relocate with her husband.
Id. at 15-16. On January 9, 2019, Father filed an objection to the notice of
relocation, a request for an emergency temporary order restraining Mother from
relocating Child, and a motion to modify custody. The trial court summarily
denied Father’s request for an emergency temporary order because Child would
not be relocated until June 2019.
[4] On April 10 and May 23, 2019, the trial court held a bifurcated evidentiary
hearing on all pending motions, at which multiple individuals—including
Mother, Father, and Mother’s Husband—testified. After Mother and Father
tendered final written arguments, on June 11, 2019, the trial court issued an
order granting Mother’s request to relocate Child to Florida and denying
Father’s motion to modify custody. The trial court found and held, in pertinent
part, as follows:
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RELOCATION
[Mother] has to prove that the proposed relocation is made in
good faith and for a legitimate reason. Despite the distance
involved, [Mother] has met that burden.[fn3]
-fn3—While the decision to move to Florida was made
quickly, that does not dictate that it was not for a legitimate
reason or done in bad faith. Further [Mother and Mother’s
Husband] had been thinking about such a move for some
time.
[Mother’s Husband] was offered a better job, with better benefits, a
potential partnership and a work schedule that would allow him
more time to spend with his family. However, he had to accept
that job quickly. Additionally, [Mother] has obtained a better job
with a work schedule that will likewise allow her to spend more
time with [Mother’s Husband] and her children. The Court thinks
the financial circumstances of [Mother and Mother’s Husband] are
better in Florida, despite the debt they have taken on.
In addition, [Mother and Mother’s Husband] were buying a home
on contract in Indiana. Due to title problems, that deal collapsed.
As a result, they had to find another home.
Further, [Mother’s] future career plans are better accommodated
living in Florida.[fn4] Clearly, [Mother and Mother’s Husband]
want to provide the best possible life for themselves and their
children.
-fn4—While she initially testified she wants to go to law
school, she is now pursuing a paralegal certification. Both
goals reflect that she is thinking about her future and the
future of her family by pursuing opportunities to improve
herself.
[CHILD’S] BEST INTERESTS
Having found that [Mother] met her burden of proof, the burden
shifts to [Father] to show that the proposed relocation is not in the
best interests of [Child].
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It is important to the Court that while [Child] is 11, paternity was
not established until 2016. The issue of [Father’s] role in [Child’s]
life, before paternity was established, is disputed. The Court
believes [Mother] has been [Child’s] primary caregiver (both
emotionally and financially) for the majority of [Child’s] life.
[Father] has certainly been involved, but not so much in a parental
role. The Court finds his involvement prior to the establishment of
paternity was more of a caretaker/daycare provider, than father.
After paternity was established, [Father’s] involvement with
[Child] improved. However, his involvement has still not been
substantial and he has not even exercised all of the parenting time
the parties agreed to.[fn5] Further, while he and [Mother] agreed he
would not pay child support, he has done little, financially, to
assist [Mother] in raising [Child].
-fn5—[Mother] and [Father] agreed to a parenting time plan
for [Father] that gave him more time with [Child] than
would have occurred under the Indiana Parenting Time
Guidelines. That agreement was made an Order of the
Court. That reflects that [Mother] recognized the important
role [Father] should play in [Child’s] life as his father.
The Court recognizes that [Father’s] contact with [Child] will be
diminished by the relocation because they see each other
frequently. However, the Court believes that [Mother and
Mother’s Husband] will do their best to minimize that by frequent
trips back to Wabash. Additionally, in this day and age, the ability
for communication and even face to face contact between [Father]
and [Child] can likewise lessen the blow. As addressed below, the
Court will deviate from the child support guidelines to provide
[Father] more income to engage in parenting where distance is a
factor.
The Court also has serious reservations about what type of
relationship [Father] would accommodate between [Child],
[Mother], and [Mother’s] extended family if he had primary
physical custody. That does not seem to be a priority of [Father’s];
whereas, [Mother’s] actions reflect a willingness and desire to
facilitate contact between [Child], [Father], and [Father’s]
extended family.
***
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Undoubtedly, [Father], his mother, and their extended family are
important to [Child] and vice versa. However, separating [Child]
from his mother is not in [Child’s] best interests.[fn6]
-fn6—The Court is troubled that [Mother] testified she is
relocating to Florida regardless of the Court’s decision.
However, the Court believes she never imagined the Court
would deny her relocation or not allow [Child] to move
with her. While that was risky, in the end, her belief was
right. It would not be appropriate for the Court to “punish”
her arrogance by making a decision that would not be in
[Child’s] best interest.
The Court believes [Mother] will do all that she can to promote
[Child’s] contact with all of his family, on both sides.
[Mother] desires to improve her lot in life and take advantage of
opportunities available to her. While her plans may change from
time to time, the reasons for those changes are thoughtful and
reasonable. She will take full advantage of any new opportunities
to enrich [Child’s] life. [Mother and Mother’s Husband] are good
role models for [Child]. They have researched the schools [Child] .
. . will attend and they sincerely believe they are good.
[Father] does not appear motivated to achieve his full potential.
Instead, he is content living with his mother, in her house.
[Father] has not met his burden of proof. [Mother’s] request to
relocate with [Child] to Florida is granted.
Id. at 23-26 (footnotes in original). Father now appeals.
Discussion and Decision
[5] On appeal, Father argues that the trial court erred when it granted Mother’s
request to relocate with Child to Florida, contending that (1) the relocation was
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not made in good faith and there were no legitimate reasons supporting the
relocation; and (2) relocation was not in Child’s best interests.
Standard of Review
[6] Our standard of review for these cases is well settled:
[W]hen reviewing the specific findings and conclusions thereon,
we must first determine whether the record supports the factual
findings, and then whether the findings support the judgment. 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 the
witnesses. 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.
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.
M.S. v. C.S., 938 N.E.2d 278, 281-82 (Ind. Ct. App. 2010) (internal citations and
quotations omitted); see also Ind. Trial Rule 52(A).
[7] Furthermore:
[T]here is a well-established preference in Indiana “for granting
latitude and deference to our trial judges in family law matters.” In
re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993). 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.” Kirk v. Kirk, 770 N.E.2d 304, 307
(Ind. 2002) (quoting Brickely v. Brickely, 247 Ind. 201, 204, 210
N.E.2d 850, 852 (1965)). “On appeal it is not enough that the
evidence might support some other conclusion, but it must
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positively require the conclusion contended for by appellant before
there is a basis for reversal.” Id. “Appellate judges are not to
reweigh the evidence nor reassess witness credibility, and the
evidence should be viewed most favorably to the judgment.” Best
v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted).
Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).
Good Faith and Legitimate Reasons
[8] After a relocating parent files a notice of relocation, the nonrelocating parent
may object and the trial court shall hold an evidentiary hearing to rule on that
objection. Ind. Code § 31-17-2.2-5(a)-(b).1 First, “[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). The trial court concluded that Mother
had met that burden by showing that her and her family’s financial
circumstances would be improved by moving to Florida. Father disputes these
findings and argues that Mother’s contradictory testimony demonstrates that
her reasons for relocating were not legitimate and the relocation was not made
in good faith.
[9] In defining potential “good faith and legitimate reasons” for a parent and child
to relocate, this Court has held that “it is common in our society that people
move to live near family members, for financial reasons, or to obtain or
1
Throughout this opinion, we are citing the version of the relocation statute that was in effect at the time
Mother first filed the notice of relocation. This statute has since been amended, and the latest version went
into effect on July 1, 2019.
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maintain employment.” T.L. v. J.L., 950 N.E.2d 779, 787-88 (Ind. Ct. App.
2011). And so, “[w]e infer that these and similar reasons . . . are what the
legislature intended in requiring that relocation be for ‘legitimate’ and ‘good
faith’ reasons.” Id. at 788.
[10] Here, the trial court concluded that Mother and Mother’s Husband were
attempting to better their lives and economic situation by relocating to Florida.
Mother’s Husband attained a more secure job with greater pay and benefits,
and Mother was seeking to further her education through either a part-time law
school program or a paralegal certification program. Furthermore, their housing
contract for a property in Wabash had fallen through, but they were able to
obtain housing in Florida if they immediately relocated. In other words, the
trial court found that Mother was relocating with Child to obtain better
employment, to increase her income, and to keep her immediate family
together.
[11] We hold that the trial court did not err in making these findings and then
concluding that these were legitimate reasons and the relocation was made in
good faith. Even if Mother contradicted herself at the evidentiary hearing, it
was ultimately the trial court’s decision to weigh her evidence against Father’s
and to determine whether Mother’s statements were credible. Most of Father’s
argument is comprised of a request that we reweigh the evidence in his favor,
which we may not do. As previously stated, we defer heavily to the trial court’s
findings and conclusions in matters of custody, relocation, divorce, and other
family law disputes because the trial court gets to examine the witnesses and all
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the evidence firsthand. Nothing in this record leads us to second-guess the trial
court’s findings and conclusions.
[12] Therefore, we conclude that the trial court did not err in finding that Mother’s
financial circumstances and her desire to obtain better housing and to live with
her husband and Child in one location were legitimate reasons causing a good
faith relocation. Thus, Mother has met her burden of proof.
Child’s Best Interests
[13] Next, “[i]f 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.” I.C. § 31-17-2.2-5(d).
[14] Pursuant to Indiana Code section 31-17-2.2-1(b),2 trial courts shall take the
following into consideration when determining whether relocation is in the
child’s best interests:
(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.
2
Similar to our explanation in footnote 5, we are citing the version of this statute that was in effect at the
time Mother filed the notice of relocation.
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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 seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the
child.
(6) Other factors affecting the best interest of the child.
[15] In its order, the trial court focused primarily on the role that Father played in
Child’s life. The trial court found that Mother has been “[Child’s] primary
caregiver (both emotionally and financially) for the majority of [Child’s] life.”
Appellant’s App. Vol. II p. 24. Additionally, the trial court found that Father
has not been nearly as involved, serving less in a parental role and more in the
role of “caretaker/daycare provider[.]” Id. Further, Father neglected to establish
paternity of Child until 2016 (after Child was already nine years old), did not
pay much, if anything, in the way of child support, and did not take advantage
of the full range of parenting time he was allotted pursuant to the trial court’s
December 16, 2016, stipulation order.
[16] Every step of the way, Mother has been loving and caring towards Child and
accommodating to Father’s desires to be a present parent. Even after Mother
decided to relocate to Florida with Mother’s Husband to get better housing,
education, and employment, the trial court still found that “[Mother’s] actions
reflect a willingness and desire to facilitate contact between [Child], [Father],
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and [Father’s] extended family.” Id. at 25. In other words, the trial court
concluded that given Mother’s greater maturity, willingness to comprise, and
overall responsibility as primary caregiver to Child, it is in Child’s best interests
to relocate with Mother and Mother’s Husband to Florida.
[17] Based on the evidence in the record and the trial court’s findings, we hold that
the trial court did not err in concluding that Mother’s decision to relocate Child
to Florida was in Child’s best interests. Once again, any argument by Father
that we reconsider witnesses, financial figures, aspects of his emotional
relationship with Child, or other evidence amounts to a request that we reweigh
the evidence, which we may not do. Though we do not dispute the earnestness
of Father’s attempts to maintain closer physical proximity to Child, we are not
free to second-guess the trial court’s judgment based on disputed evidence that
it has already thoughtfully reviewed and weighed.
[18] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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