Jacqueline Myers v. Mark Myers , 2014 Ind. App. LEXIS 322 ( 2014 )

FOR PUBLICATION
Jul 15 2014, 10:22 am
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
LEAH R. BURRIS KEVIN HOOVER
Zionsville, Indiana Hill Fulwider
Indianapolis, Indiana
DONNA JAMESON
Greenwood, Indiana ATTORNEYS FOR GUARDIAN
AD LITEM:
DEBORAH M. AGARD
DANIEL W. KIEHL
Law Office of Deborah M. Agard
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JACQUELINE MYERS, )
)
Appellant/Respondent, )
)
vs. ) No. 49A02-1310-DR-895
)
MARK MYERS, )
)
Appellee/Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Thomas J. Carroll, Judge
The Honorable Christopher Haile, Magistrate
Cause No. 49D06-0507-DR-26923
July 15, 2014
OPINION – FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Jacqueline Myers (“Mother”) filed a notice of intent to relocate from Indiana to
Texas with her daughter, fourteen-year-old H.M. Mark Myers (“Father”) objected and
filed a motion to prevent Mother’s relocation with H.M., which the trial court granted
following an evidentiary hearing. Mother now appeals. She contends that because H.M.
is not a child of the marriage, Father could not object to her relocation and the trial court
should not have entertained issues related to H.M.’s custody. She also argues that the
court erred by denying her relocation request.
We conclude that the presumption that H.M. is a child of the marriage has not
been rebutted; thus, H.M.’s relocation was properly before the court upon Father’s valid
objection. We also conclude that the trial court did not err in finding that Mother did not
meet her burden of proof in seeking to relocate. We do find, however, that the trial court
erred in ordering that Father would receive automatic physical custody of H.M. if Mother
moved to Texas. We affirm in part and reverse in part.
Facts and Procedural History
Mother and Father have six children.1 H.M., born in 2000, is their youngest child.
The parties divorced in 2006. During the dissolution proceedings, Mother informed
Father that he was not H.M.’s biological father.
In the decree of dissolution, the Marion Superior Court discussed H.M.’s
paternity:
1
Two of the parties’ children were adopted from Paraguay, where the parties lived and worked as
missionaries until 2002.
2
Father is not [H.M.’s] biological [father], but is the product of an affair
Mother had while she was in Paraguay. However, the parties have always
held out Father to be [H.M.’s] father and Father is identified as such on
[H.M.’s] birth certificate.
* * * * *
With respect to [H.M.], the court has reservations about its subject[-]matter
jurisdiction to enter orders. It is clear that Father has failed to establish that
Mother is unfit such that he may be awarded third[-]party custody. It is
also clear that Father has acted as a parent to H.M. and is the only father
known to the child. Indeed Mother testified that Father should have
guideline parenting time with [H.M.] . . . . [T]he Court finds that treating
H.M. different[ly] from [the other children] for parenting time would not be
in her best interests. The Court therefore finds that Father should have []
[p]arenting [t]ime with [H.M.] . . . .
* * * * *
In making a custody determination between a natural parent and a non-
parent, such as the situation in this case with respect to [H.M.], the court
presumes the parent has a superior right to custody, but the non-parent can
overcome this presumption by showing . . . the unfitness of the natural
parent.
* * * * *
Each parent shall have Indiana Parenting Time with the children not in their
custody, including [H.M.].
Appellant’s App. p. 15, 19, 22 (formatting altered). The parties did not appeal this order.
Six years passed, during which time Father continued to act as H.M.’s parent without
objection from Mother.
In 2012 Father filed a motion to modify custody and child support.2 The trial
court appointed a guardian ad litem (GAL) to represent the interests of H.M., now a
teenager. Father’s modification petition was granted with respect to the parties’ son
2
This petition is not in the record. However, the record suggests that Father sought primary
physical custody of H.M. and the parties’ son M.M.
3
M.M., but not H.M. See id. at 8 (CCS entry noting that “Father shall have sole legal and
primary physical custody of [the parties’ child] [M.M] . . . .”). H.M. continued to live
primarily with Mother. Mother was also ordered to pay Father child support at this time.
Mother did not challenge Father’s continued right to exercise parenting time with H.M.
during this new round of legal proceedings.
Just a few months later, Mother filed notice of her intent to relocate to Texas. Id.
at 10 (CCS). Father and the GAL filed objections. Id. The trial court held a hearing on
the issue of relocation in October 2013.
Mother testified that she wished to relocate to Texas for financial reasons. Tr. p.
7, 15. She said that she was having difficulty paying her living expenses and owed a
large amount of money in attorney fees. Id. at 14. She believed she could live rent-free
in Texas with her cousins. Id. at 7, 9. Mother quit her job before the relocation hearing
and accepted a job at a podiatrist’s office in Texas. Id. at 15. However, Mother admitted
that she would earn the same salary in Texas as she had in Indiana. Id. at 16. She also
admitted that H.M. had no real connection to Texas: Father’s family was located in
Indiana, and H.M. had no friends in Texas. Id. at 29, 31. H.M. had extracurricular ties to
Indiana as well—she took piano lessons and dance classes in Indiana, and she was
involved in her local church. Id. at 28, 34.
At the conclusion of the hearing, the trial court dismissed Mother’s motion,
saying:
[Mother], we had a hearing on the modification of custody [for H.M.], I
denied that motion because from what I heard there was no basis to change
custody, but quite frankly your judgment in this move to Texas, and
quitting your job, it raises a lot of doubts with the [c]ourt about your
4
judgment, quite honestly. I’m a little flabbergasted after all we went
through earlier this year that you would come back to this [c]ourt on this
type of situation. [H.M.] has no friends there, her father is here, her siblings
are here, her school is here, her piano teacher is here, you’re taking a job
that pays the same amount of money that the job you had here [did], there’s
no showing that you couldn’t find other part time work, a different kind of
job, you didn’t petition the court to lower your child support, you’ve been
temporarily staying with other people here without any rent [], there’s
absolutely no basis for a good[-]faith relocation of H.M.
Id. at 66-67 (emphasis added). The court later entered an order formally denying
Mother’s request to relocate. The order included the following:
[Mother] has not met her burden of establishing that the relocation is made
in good faith and is in the best interests of [H.M.].
The court orders that [Mother] shall not relocate to Texas with [H.M.].
The court orders that if [Mother] still intends to relocate to Texas[,] . . .
custody of [H.M.] shall be modified and awarded to [Father]; [Mother]
shall have parenting time pursuant to the Indiana Guidelines . . . .
Appellant’s App. p. 12 (emphasis added, formatting altered). Mother now appeals.
Discussion and Decision
On appeal, Mother contends that H.M. is not a child of the marriage. For this
reason, Mother argues that Father is not a nonrelocating parent who may object under the
relocation statute, and the trial court should not have entertained issues related to H.M.’s
custody. Mother also claims that the trial court erred in rejecting her relocation request.
I. H.M.’s Paternity
Mother contends that, because H.M. is not a child of the marriage, Father is not a
nonrelocating parent3 entitled to object to her relocation. We disagree.
3
Indiana Code section 31-17-2.2-5(a) allows a nonrelocating parent to object to a relocation
request:
5
Mother argues that “it is well established in the court record that [Father] is not
[H.M.’s] biological father and [H.M.] is not a child of the marriage as she is not the
biological child of both parties and has not been adopted by [Father].” Appellant’s Br. p.
11-12. But H.M. was born in 2000 when Mother and Father were married, and Father
signed H.M.’s birth certificate. H.M. is, by definition, a child of the marriage, and she is
presumed to be Father’s biological child. See Ind. Code § 31-14-7-1(1). Mother appears
to assert, referencing the trial court’s dissolution order, that she rebutted the presumption
that H.M. is a child of the marriage. We are not so convinced.
The trial court’s dissolution order, which neither party appealed, is contradictory.
It states that H.M. is not Father’s biological child. Yet it grants parenting time—
according to the Indiana Parenting Time Guidelines—to Father, something it would lack
authority to do if it had in fact determined that H.M. was not a child of the marriage. See
Cochran v. Cochran, 717 N.E.2d 892, 894 (Ind. Ct. App. 1999) (“[I]f the dissolution
court did not determine if [the child] was a child of the marriage, it would lack the
authority to enter support, custody, or visitation orders.”), trans. denied.
Not later than sixty (60) days after receipt of the notice from the relocating individual . . .
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).
(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.
6
Moreover, the presumption that Father is H.M.’s father could have been rebutted
only “by direct, clear, and convincing evidence.” Fairrow v. Fairrow, 559 N.E.2d 597,
600 (Ind. 1990) (citation omitted); see also Buchanan v. Buchanan, 256 Ind. 119, 124
(1971) (when a child is born during a marriage, “a trial court cannot rule against [the
husband’s paternity] except on facts which prove conclusively that the husband could not
have been the father.”). The trial court’s dissolution order does not mention the types of
evidence traditionally used to rebut the marriage presumption for paternity:
That a husband (1) is impotent; (2) was absent so as to have no access to
the mother; (3) was absent during the entire time the child must have been
conceived; (4) was present with the mother only in circumstances which
clearly prove there was no sexual intercourse; (5) was sterile during the
time the child must have been conceived; or (6) is excluded as the child’s
father based upon blood grouping test results.
Minton v. Weaver, 697 N.E.2d 1259, 1260 (Ind. Ct. App. 1998) (quotation omitted),
trans. denied. Nor does it mention DNA testing, which has emerged as the principal
method of determining paternity. In a recent published dissent from the denial of a
petition to transfer, Chief Justice Dickson noted this and stated:
[W]ith the advent of genetic testing, courts now have a virtually foolproof
way to make paternity determinations. This methodology is
overwhelmingly superior to reliance on traditional testimonial methods of
proof. Only DNA testing can satisfy the high standard of proof required to
rebut the presumption of paternity—evidence that is “direct, clear, and
convincing” . . . and that disproves the presumption “conclusively[.]” For
this reason, I believe that in any proceeding in which the presumption of
biological paternity is potentially impinged, DNA testing, if available,
should be mandatory as the exclusive way of providing conclusive, direct,
clear, and convincing evidence to rebut the presumption. Without
supporting DNA genetic evidence, courts should not make any judicial
determination that a child’s biological father is someone other than the
biological mother’s husband when the child was born. Nothing else should
suffice.
7
In re Paternity of I.B., 5 N.E.3d 1160, 1161 (Ind. 2014) (Dickson, C.J., dissenting to the
denial of transfer, joined by Rush, J.).
Absent conclusive, direct, clear, and convincing evidence, and in light of the
contradictory dissolution order, we cannot say that the presumption that H.M. is a child
of the marriage has been rebutted.4 This conclusion is bolstered by the parties’ and the
trial court’s post-dissolution conduct: Mother has never challenged Father’s right to
parent H.M., Father sought custody of H.M. at one point, and the court ordered that
Father would have automatic custody of H.M. if Mother moved to Texas. We therefore
conclude that Father is a nonrelocating parent capable of challenging Mother’s relocation
request.5
Mother also argues that, because H.M. is not a child of the marriage, the trial court
should not have entertained issues related to H.M.’s custody. We disagree, as we have
already concluded that the child-of-the-marriage presumption has not been rebutted.
Moreover, Mother has never challenged the trial court’s authority to hear custody issues
relating to H.M. She had numerous chances to do so—during the dissolution proceeding
or in any later proceeding—but she did not. The doctrine of laches prevents her from
doing so now.
“Laches is neglect for an unreasonable length of time, under circumstances
permitting diligence, to do what in law should have been done.” Vanderbilt v.
4
In cases where a mother and father of a child are attempting to stipulate or otherwise agree that
a child is not a child of the marriage, “it is well within the discretion of the trial court to withhold
approval [of such a stipulation] until paternity has been established in another man.” Russell v.
Russell, 682 N.E.2d 513, 518 (Ind. 1997).
5
Because we conclude that Father is a nonrelocating parent capable of objecting to Mother’s
relocation, we need not consider whether the GAL had standing to object to Mother’s relocation.
8
Vanderbilt, 679 N.E.2d 909, 910 (Ind. Ct. App. 1997) (doctrine of laches prevented
mother from challenging father’s paternity seven years after child’s birth) (citation
omitted), trans. denied. Laches requires: 1) inexcusable delay in asserting a right; 2)
implied waiver of the right arising from knowing acquiescence in existing conditions; and
3) circumstances causing prejudice to the adverse party. Id.Father was identified as H.M.’s father on her birth certificate. Then, seven years
after H.M.’s birth, Mother suddenly revealed that H.M. was not Father’s biological child.
But when this information came to light, Father continued to act as H.M.’s parent. He is
the only father that H.M., now a teenager, has ever known. Mother, meanwhile, has
never challenged Father’s right to act as H.M.’s parent; rather, she knowingly acquiesced
in the status quo for the whole of H.M.’s life and throughout numerous court
proceedings. Mother’s actions have prejudiced Father, and she may not now challenge
Father’s parenthood.
III. Relocation
A. Denial of Relocation
We now turn to Mother’s arguments regarding relocation. She argues that the trial
court erred in finding that she did not meet her burden of proving good faith and
legitimate reasons for relocation.
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-
17-2-2-5(a). If the nonrelocating parent objects, the burden is on the relocating parent to
show that the proposed relocation is made in good faith and for a legitimate reason. Ind.
9
Code § 31-17-2.2-5(c). If the relocating parent meets that burden, then the burden shifts
to the nonrelocating parent to show that the proposed relocation is not in the child’s best
interests. Ind. Code § 31-17-2.2-5(d).
In considering the proposed relocation, the trial court must weigh the following
factors:
(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.
Ind. Code § 31-17-2.2-1(b). “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
10
interests; and the child’s adjustment to home, school, and the community. Ind. Code §
31-17-2-8; see also Baxendale v. Raich, 878 N.E.2d 1252, 1256 (Ind. 2008).
Here, although neither party requested specific findings of fact and conclusions
thereon, the trial court sua sponte made findings in determining that
Mother’s relocation request was not made in good faith and for a legitimate purpose.
Our standard of review in this instance is well settled:
Pursuant to Indiana Trial Rule 52(A), we do 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 witnesses. Where, as
here, the findings and conclusions are entered sua sponte, the specific
findings control only as to the issues they cover, while a general judgment
standard applies to any issues upon which the trial court has not found, and
we may affirm a general judgment on any theory supported by the evidence
adduced at trial.
Kietzman v. Kietzman, 992 N.E.2d 946, 948 (Ind. Ct. App. 2013) (citations and
quotations omitted).
With this standard in mind, our Supreme Court has expressed a preference for
granting latitude and deference to our trial judges in family-law matters. In re Marriage
of Richardson, 622 N.E.2d 178, 178 (Ind. 1993). Recently, it emphasized this principle
once again, stating that such deference is necessary because of trial judges’ “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.11
At the relocation hearing, Mother testified that she wished to relocate to Texas for
financial reasons. She said that she was having financial difficulties and she believed she
could live rent-free in Texas with her cousins. Mother testified that she had accepted a
job at a podiatrist’s office in Texas. However, Mother admitted that she would earn the
same salary in Texas as she had in Indiana. She also admitted that H.M. had no real
connection to Texas: Father’s family was located in Indiana, and H.M. had no friends in
Texas. H.M. also had extracurricular ties to Indiana—she took piano lessons and dance
classes in Indiana, and she was involved in her local church. At the conclusion of the
hearing, the trial court denied Mother’s request, stating:
[H.M.] has no friends there, her father is here, her siblings are here, her
school is here, her piano teacher is here, you’re taking a job that pays the
same amount of money that the job you had here [did], there’s no showing
that you couldn’t find other part time work [here], a different kind of job,
you didn’t petition the court to lower your child support, you’ve been
temporarily staying with other people here without any rent . . . .
Tr. p. 66-67. The trial court also noted that Mother’s relocation request followed closely
on the heels of a recent custody modification in Father’s favor. Id.On appeal, Mother takes particular issue with the trial court’s view of her new
job.6 She admits that initially her salary would be the same as her Indiana salary, but she
argues that she could potentially earn more in the future. Appellant’s Br. p. 16. She also
argues that she was, in fact, paying rent in Indiana, she has many family members in
6
Mother also argues that the trial court failed to consider certain factors in the relocation statute;
particularly that she has never interfered with Father’s parenting time or been found to be in contempt of
court. See Appellant’s Br. p. 17-18, 21. Indiana Code section 31-17-2.2-1(b)(4) requires a court to
consider “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.” Because there was no evidence of this, it was not relevant to the trial court’s determination.
12
Texas, and Father is financially able to travel to Texas. Id. at 17-18. These arguments
are a request to reweigh the evidence, which we will not do.7
We cannot say, after review of the evidence, that the trial court erred in finding
that Mother did not meet her burden of proving good faith and legitimate reasons for
relocation.8
B. Automatic Change of Custody
Last, Mother argues that the trial court erred when it ordered that Father would
have custody of H.M. if Mother moved to Texas. See Appellant’s App. p. 12 (“The court
orders that if [Mother] still intends to relocate to Texas[,] [] custody of [H.M.] shall be
modified and awarded to [Father] . . . .”) (emphasis added).
An automatic, future custody modification order violates Indiana’s custody
modification statute. Bojrab v. Bojrab, 810 N.E.2d 1008, 1012 (Ind. 2004). Specifically,
language ordering that custody shall be automatically modified in the event of one
parent’s relocation “is inconsistent with the requirements of the custody modification
statute[.]” Id. By contrast, language declaring that a present award of custody is
7
Moreover, the cases upon which Mother relies are factually distinguishable. See In re T.L. v.
J.L., 950 N.E.2d 779 (Ind. Ct. App. 2011) (relocating mother’s family—including ill family members
who needed care—lived in another state and offered to finance her education there), reh’g denied; Fridley
v. Fridley, 748 N.E.2d 939 (Ind. Ct. App. 2001) (relocating mother lost her job due to a staff reduction;
she applied for a similar job in Indiana but was not offered the job); In re Paternity of X.A.S., 928 N.E.2d
222 (Ind. Ct. App. 2010) (father remarried and wished to relocate because his new wife was a naval
officer stationed in California), trans. denied; Rogers v. Rogers, 876 N.E.2d 1121 (Ind. Ct. App. 2007)
(relocating parent accepted new job for an increased salary and because no full-time positions were
available to her in Indiana), trans. denied.
8
Mother also argues that the “burden of proof is on the nonrelocating parent to establish that the
relocation is not in the child’s best interests.” Appellant’s Br. p. 19. She is correct. If the nonrelocating
parent objects to relocation, the burden is on the relocating parent to show that the proposed relocation is
made in good faith and for a legitimate reason. Ind. Code § 31-17-2.2-5(c). If the relocating parent
meets that burden, then the burden shifts to the nonrelocating parent to show that the proposed relocation
is not in the child’s best interests. Ind. Code § 31-17-2.2-5(d). Because Mother did not meet her burden
in this case, Father’s burden of proof was never triggered.
13
conditioned upon the continuation of a child’s place of residence is proper as “a
determination of present custody under carefully designated conditions.” Id. As the
Court explained in Bojrab:
There is a significant difference between the two phrases. One purports to
automatically change custody upon the happening of a future event; the
other declares that the present award of custody is conditioned upon the
continuation of the children’s place of residence. While the automatic
future custody modification violates the custody modification statute, the
conditional determination of present custody does not.
Id.In this case, the trial court’s order operated to automatically modify custody upon
the happening of a future event—Mother’s relocation to Texas. This was error, and we
reverse the portion of the trial court’s order that automatically grants Father primary
custody of H.M. if Mother relocates to Texas.
Affirmed in part and reversed in part.
NAJAM, J., and BROWN, J., concur.
14