In re: the Paternity of B.J., C.J. v. H.H. ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose May 16 2014, 9:07 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
KATHERINE A. HARMON JONATHAN R. DEENIK
JARED S. SUNDAY Cross, Pennamped, Woolsey & Glazier, P.C.
Mallor Grodner LLP Carmel, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE PATERNITY OF B.J. )
)
C.J., )
)
Appellant-Respondent, )
)
vs. ) No. 80A04-1311-JP-575
)
H.H., )
)
Appellee-Petitioner. )
APPEAL FROM THE TIPTON CIRCUIT COURT
The Honorable Thomas R. Lett, Judge
Cause No. 80C01-0909-JP-78
May 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
C.J. (“Father”) appeals the trial court’s order denying his objection to the
relocation of H.H. (“Mother”) with the parties’ child, B.J., and his petition to modify
custody. Father raises one issue which we revise and restate as whether the court abused
its discretion in denying his objection to Mother’s relocation to the State of Washington
with B.J. and petition to modify custody. We reverse and remand.
FACTS AND PROCEDURAL HISTORY
Mother and Father are the natural parents of B.J., a child born out of wedlock in
January 2006. In June 2010, the trial court entered an Order Establishing Paternity,
Custody, and Child Support, in which it found that Father and Mother were B.J.’s natural
parents, that Mother and B.J. resided in Tipton County, Indiana, that B.J. had been living
with Mother since the child’s birth, that the parties would have joint legal custody of B.J.,
that Mother would have primary physical custody of B.J., that Father would have
parenting time according to the Indiana Parenting Time Guidelines, and that Father
would pay Mother weekly child support.
In May 2011, Mother provided the court with notice of her intent to relocate out of
the State of Indiana. Together with B.J. and her husband E.H., Mother moved to
Tennessee, where E.H. was based as an active member of the armed forces. In June
2011, the parties submitted an Agreed Entry Regarding Parenting Time, which the court
approved, providing for Father’s parenting time and for the parties’ responsibilities
related to transportation of B.J. between Mother’s residence in Tennessee and Father’s
residence in Indiana.
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On November 5, 2012, Mother filed a verified notice of intent to relocate to
Indiana stating that the date she moved to her new address was approximately September
3, 2012, that B.J. moved with her, that the reason she moved was that E.H. “is in the
military and was sent off to duty so I moved from Tennessee, where we were based, to
Indiana so I could be closer to my family.” Appellant’s Appendix at 33. Father did not
object. On November 15, 2012, the court issued an order that Mother would continue to
have primary physical custody of B.J. and establishing Father’s parenting time and child
support obligation.
On May 7, 2013, Mother filed a notice of intent to relocate to Tennessee which
provided that she was moving from her current address in Indiana in May or June 2013,
E.H. had been deployed to Afghanistan, pursuant to an agreed entry in June 2011 she had
relocated with B.J. to Tennessee where her husband was stationed, while E.H. was
deployed to Afghanistan she temporarily relocated back to Tipton, Indiana, where she
resided with her grandmother, E.H. would be returning to Tennessee at the end of his
deployment on or about May 24, 2013, she had a subsequent child, M.H., with E.H. and
that M.H. and B.J. have a close relationship, Father was aware of the temporary nature of
her relocation to Indiana during the time E.H. was deployed, she intended to relocate to a
residence in proximity to the base on which E.H. is stationed, and that she is a stay-at-
home mother and relies on E.H.’s income from his service for her living expenses.
Father filed an objection to Mother’s relocation and petition to modify in which he stated
that he and B.J. have a close bond and moving to Tennessee would disrupt the quantity
and quality of his parenting time, and Father requested that he be awarded primary
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physical custody of B.J. regardless of Mother’s relocation and that Mother be ordered to
pay a portion of his attorney fees. Following a hearing on July 18, 2013, the court
entered an order on July 29, 2013, which denied Father’s petition to modify custody,
ordered that Mother was permitted to relocate with B.J. to Tennessee and that she would
remain B.J.’s primary physical custodian subject to Father’s parenting time, and
established Father’s parenting time and the parties’ related transportation obligations.
On August 28, 2013, Mother filed a notice of intent to relocate in which she stated
that she was moving from her current address on or about November 1, 2013, and would
be relocating and living on or near a military base in the area of Olympia, Washington.
Mother stated that the reason for the move was that E.H. had been reassigned by the
Army to a base near Olympia, Washington, and that she believed parenting time pursuant
to the Indiana Parenting Time Guidelines where distance is a factor would be in B.J.’s
best interest.
On September 12, 2013, Father filed a Verified Objection to Mother’s Relocation;
Request for Hearing; and Petition to Modify, in which he stated that Mother’s newest
relocation notice was filed less than three months from the last hearing, that Mother’s
intended move to Washington State greatly hindered his ability to have meaningful
parenting time with B.J., and that the great distance would prove to be a financial
hardship in his ability to exercise regular parenting time. Father requested that he be
awarded primary physical custody of B.J. due to Mother’s relocation to Washington State
and requested that Mother be ordered to pay a portion of his attorney fees.
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On October 21, 2013, the court held a hearing at which the parties presented
evidence and argument. On October 31, 2013, the court issued an order which provided:
Order on Hearing of October 21, 2013
The parties having appeared in person and by counsel for scheduled
hearing, evidence having been heard, and the court having taken this matter
under advisement, the court now finds and Orders as follows:
1. The court finds that Mother’s proposed relocation to
the State of Washington with the minor child was
made in good faith and for a legitimate purpose.
2. The court finds that Father has not demonstrated that
the proposed relocation is not in the best interest of the
child.
3. Father’s Objection to Relocation and Petition to
Modify is Denied.
4. Mother shall be permitted to relocate to the State of
Washington with the minor child subject to the
parenting time of the Father as set forth as follows:
A. Every Spring Vacation
B. One-half of Summer vacation plus one week
C. One-half of Christmas vacation
D. Alternate Fall Break and Thanksgiving
E. President’s Day Weekend
F. Memorial Day Weekend
5. Mother shall maintain health insurance on the minor
child.
6. The Father’s child support obligation is reduced to
Zero in order to offset travel expenses. The parties
shall share equally all medical, dental and optical
expenses. The parties shall also share equally all
extracurricular expenses and all travel related
expenses.
7. Due to the Mother’s numerous relocations which
required hearings, the Mother is Ordered to pay a
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portion of Father’s attorney fees . . . in the amount of
$500, due and payable within thirty days from the date
of this Order.
8. All prior Orders not modified herein shall remain in
full force and effect.
Id. at 12-13.
DISCUSSION
The issue is whether the trial court abused its discretion in denying Father’s
objection to Mother’s relocation to the State of Washington with the parties’ child and his
petition to modify custody. Father contends in part that the trial court failed to consider
the required relevant factors found at Ind. Code § 31-17-2.2-1(b) and made a single
finding with regard to B.J.’s best interests. Mother maintains that evidence pertinent to
each of the statutory factors was presented to the trial court.
We review custody modifications for an abuse of discretion. In re Paternity of J.J.,
911 N.E.2d 725, 727 (Ind. Ct. App. 2009). We will not reweigh the evidence or judge the
credibility of the witnesses. Id. We consider only the evidence most favorable to the
judgment and any reasonable inferences from that evidence. Id. at 727-728.
Ind. Code §§ 31-17-2.2 governs the relocation of a custodial parent. Id. at 728.
“In general, the court must consider the financial impact of relocation on the affected
parties and the motivation for the relocation in addition to the effects on the child,
parents, and others identified in [Ind. Code § 31-17-2-8] as relevant to every change of
custody.” Id. (citing Baxendale v. Raich, 878 N.E.2d 1252, 1256 (Ind. 2008)). Under
Ind. Code §§ 31-17-2.2, there are two ways to object to a proposed relocation: a motion
to modify a custody order under Ind. Code § 31-17-2.2-1(b), and a motion to prevent the
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relocation of a child under Ind. Code § 31-17-2.2-5(a). Id. Under either a motion to
prevent relocation or a motion to modify custody, if the relocation is made in good faith
both analyses ultimately turn on the best interests of the child. Id.The custodial parent’s relocation does not require modification of a custody order.
Id. at 729. However, when the non-relocating parent seeks custody in response to a
notice of intent to relocate with the child, the court shall take into account the factors
found at Ind. Code § 31-17-2.2-1(b) in considering the proposed relocation. Id. Ind.
Code § 31-17-2.2-1(b) provides:
Upon motion of a party, the court shall set the matter for a hearing to
review and modify, if appropriate, a custody order, parenting time order,
grandparent visitation order, or child support order. The court shall take
into account the following in determining whether to modify a custody
order, parenting time order, grandparent visitation order, or child support
order:
(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:
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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.
“The court may consider a proposed relocation of a child as a factor in determining
whether to modify a custody, parenting time order, . . . or child support order.” Ind. Code
§ 31-17-2.2-2(b). Ind. Code § 31-17-2-8 provides in part that, “[i]n determining the best
interests of the child, . . . the court shall consider all relevant factors,” including:
(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:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the
child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.
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(8) Evidence that the child has been cared for by a de facto custodian,
and if the evidence is sufficient, the court shall consider the factors
described in section 8.5(b) of this chapter.
We acknowledge, as Mother argues, that the parties presented evidence and
argument at the October 21, 2013 hearing. We also note that, at the start of the October
21, 2013 hearing, Father’s counsel expressly incorporated all of the testimony from the
prior hearings, specifically the hearing on July 18, 2013, and the trial court incorporated
and took judicial notice of the prior proceedings and all of the prior exhibits that had been
admitted. The trial court’s October 31, 2013 order found that Mother’s proposed
relocation to the State of Washington with the minor child was made in good faith and for
a legitimate purpose and that Father has not demonstrated that the proposed relocation is
not in the best interest of the child. However, the October 31, 2013 order does not
include any additional findings which demonstrate that the trial court fully considered or
took into account the statutory factors set forth at Ind. Code § 31-17-2.2-1(b) and Ind.
Code § 31-17-2-8 as appropriate. See In re Paternity of J.J., 911 N.E.2d at 731 (stating
“we observe that the trial court’s order does not lead us to the conclusion that the court
considered each factor listed in section 31-17-2.2-1(b)”). The trial court has a statutory
duty to consider these factors in arriving at its determination. Because the court did not
issue findings, we cannot be certain which of the factors the court considered important
or the manner in which the factors were evaluated. See Green v. Green, 843 N.E.2d 23,
27 (Ind. Ct. App. 2006) (holding that “[a]s the trial court did not issue findings in the
proceeding below, we cannot be certain as to which of the section 8 factors the trial court
considered important or as to the manner, if at all, in which each factor was evaluated”).
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Accordingly, we reverse the October 31, 2013 order and remand to the trial court
with instructions to enter an order demonstrating that the court fully considered the
relevant statutory factors based upon the evidence and testimony presented at the October
21, 2013 hearing and other incorporated proceedings. See In re Paternity of J.J., 911
N.E.2d at 731 (holding the trial court’s order did not lead us to the conclusion it
considered the Ind. Code § 31-17-2.2-1(b) factors); Green, 843 N.E.2d at 29 (holding
that, by ignoring relevant section 8 factors, the trial court abused its discretion when it
denied the petition to modify custody and reversing and remanding for a determination
regarding whether the effect of the relocation was of such a nature as to require a
modification in the custody).1 The court need not conduct additional evidentiary
proceedings and may rely upon the testimony and evidence already presented unless it
determines that pertinent evidence related to one or more of the relevant factors has not
been presented. Absent exigent circumstances, the parties shall maintain the status quo
pending the trial court’s order on remand. See In re Paternity of J.J., 911 N.E.2d at 731.
1
Mother argues in part that, in In re Paternity of J.J., evidence had not been presented to the trial
court regarding the statutory factors, that Father does not argue there was no evidence presented regarding
the relevant statutory factors, and thus that In re Paternity of J.J. is not controlling. As noted above, while
the parties here presented evidence at the proceedings below, the trial court was nevertheless required to
fully consider the statutory factors, and its order does not indicate whether it considered the relevant
factors. While the court in In re Paternity of J.J. found that evidence had not been presented related to all
of the statutory factors, the court also concluded that “the trial court’s order does not lead us to the
conclusion that the court considered each factor listed in section 31-17-2.2-1(b).” In re Paternity of J.J.,
911 N.E.2d at 731. In re Paternity of J.J. is not inconsistent with our decision to remand for an order
demonstrating the trial court considered the relevant statutory factors. See also Green, 843 N.E.2d at 29(holding, where evidence was presented before the trial court, the trial court did not issue findings, which
prevented this court from determining whether the trial court fully considered the relevant factors).
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CONCLUSION
For the foregoing reasons, we reverse the October 31, 2013 order and remand to
the trial court with instructions to enter an order demonstrating that it fully considered the
relevant statutory factors based upon the evidence and testimony presented.
Reversed and remanded.
VAIDIK, C.J., and NAJAM, J., concur.
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