Bethany Koorsen v. Benjamin Koorsen (mem. dec.) ( 2015 )

MEMORANDUM DECISION Aug 04 2015, 9:32 am
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 of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dorothy Ferguson Katherine A. Harmon
Anderson, Indiana Jared S. Sunday
Mallor Grodner LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bethany Koorsen, August 4, 2015
Appellant-Petitioner, Court of Appeals Case No.
48A05-1411-DR-532
v. Appeal from the Madison Circuit
Court
Benjamin Koorsen, The Honorable Jason Childers,
Judge
Appellee-Respondent,
Case No. 48C06-1112-DR-840
Vaidik, Chief Judge.
Case Summary
[1] In summer 2014 Bethany Koorsen (“Mother”) filed notice of her intent to
relocate from Pendleton, Indiana, to Albion, Indiana, ninety minutes away,
with the parties’ three children. Benjamin Koorsen (“Father”) opposed
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Mother’s relocation request. Two weeks later—and before the trial court could
hold a hearing—Mother moved to Albion with the children. In August, after a
hearing, the trial court determined that relocating to Albion was not in the
children’s best interests and denied Mother’s relocation request. On appeal,
Mother argues that this was error. She also claims that the court erred by
ordering that Father would have custody of the children if Mother remained in
Albion. Because we find no error in either respect, we affirm.
Facts and Procedural History
[2] Mother and Father have three children. Since the parties’ divorce in 2012,
Mother has had primary physical custody of the children, and Father has
exercised regular, frequent parenting time. The parties share legal custody, and
Father pays child support. Before these proceedings began, both parties lived in
Pendleton, Indiana.
[3] In June 2014 Mother filed notice of her intent to relocate with the children to
Albion, Indiana—approximately ninety minutes from Pendleton. Father
opposed the move. Two weeks later, Mother moved to Albion and took the
children with her.
[4] At the August 2014 hearing on Mother’s relocation petition, Mother testified
that she moved to Albion because she got sick, lost her two jobs, and could not
afford her rent in Pendleton. Tr. p. 10. In Albion, she lived with her mother
(“maternal grandmother”) in a three-bedroom house. Id. Mother testified that
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she planned to attend nursing school at the Fort Wayne Ivy Tech campus, and
maternal grandmother would watch the children when she was in school. Id. at
11, 32. She did not have a job, but she thought she might get work at a local
movie theater. Id. at 14. Mother admitted that after moving to Albion, she
made educational decisions without consulting Father: she enrolled the parties’
youngest child in a preschool program and the other children in a private
Lutheran school, although the family was not Lutheran. Id. at 14-18. Because
Mother could not afford to pay private-school tuition, she had applied for
tuition vouchers, which had not yet been approved. Id. at 28-29. When asked
about Father’s ability to see the children if they lived in Albion, Mother
admitted that she would not be able to transport them to and from Pendleton.
Id. at 24-25. She also admitted that Father had a great relationship with the
children and that it would be difficult for the children to see Father much less
than they were accustomed to. Id. at 25.
[5] Father testified that before Mother moved, he and his fiancée had the children
nearly fifty-percent of the time. Id. at 47. The children’s school and doctors
were near Father’s home in Pendleton, and Father’s family friend had provided
affordable childcare for the children for years. Id. at 51-52. Father expressed
concern about maternal grandmother watching the children because she had
mental-health issues, and he and Mother had previously agreed not to let her
watch the children. Id. at 50. When asked how the move would affect the
amount of time he would spend with the children, Father became emotional
and said that the distance would make it difficult for him to see the children
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often and that he would miss their daily activities. Id. at 52. He asked the court
to order Mother to move back to Pendleton or grant him primary physical
custody of the children. Id. at 56.
[6] After taking the matter under advisement, the court issued an order denying
Mother’s request to relocate with the children. The court explained that the
move to Albion was not in the children’s best interests:
Both Mother and Father have significant bonded relationships with the
children. Prior to Mother’s move, Father had parenting time with the
children almost fifty (50%) percent of the time. However, since
Mother’s move to Albion[], Father’s parenting time has been
dramatically reduced due to the significant distance between the
parties’ respective residences, as well as Father’s work schedule at
Gordon Food Services. Consequently, Mother’s relocation has made
it difficult for Father to maintain the relationship he has established
with the parties’ children.
Further, [] Mother and the [] children are living with . . . [maternal]
Grandmother in Albion[.] Thus, when Mother is gone, Grandmother
watches the children. However, when the parties were married, the
parties agreed not to allow Grandmother to watch the children due to
concerns about Grandmother’s mental health. Mother testified that
Grandmother continues to suffer from depression. As a result,
allowing Grandmother, who is still experiencing mental-health issues,
to be the primary caregiver when Mother is gone raises the same
concerns the parties had while married about the children’s well-being
when in Grandmother’s care.
Mother’s relocation to Albion [] has also not improved her standard of
living or given her access to an opportunity that was not available at
her prior residence. Mother testified that she is currently unemployed
but is seeking work. Mother also stated that she is enrolled at Ivy
Tech. However, with Ivy Tech having campuses located all over
Indiana, relocation to Albion does not give Mother a unique
educational opportunity.
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Lastly, Mother has violated the parties’ joint custody arrangement
since moving to Albion [] by enrolling the children in a private
Christian school without consulting Father. Whether or not the
distance between the parties has given Mother the impression that she
can now act unilaterally on behalf of the children, it is clear that
Mother’s relocation has negatively impacted Father’s ability to
participate in the decision-making process concerning the children.
Appellant’s App. p. 10-11. The court concluded by stating that “in the event
Mother chooses to remain in Albion . . . Father shall be granted physical
custody of the [] children,” but if Mother “returns to [Pendleton], the current
order as to custody and parenting time shall remain in effect.” Id. at 11.
[7] Mother filed a motion to correct errors, which the trial court denied. Mother
now appeals.
Discussion and Decision
[8] Mother contends that the trial court erred when it concluded that the relocation
to Albion was not in the children’s best interests. She also argues that the
court impermissibly ordered a prospective change of custody to Father.
1. Relocation
[9] 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. I.C. § 31-17-2.2-5(c). If the relocating parent meets
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that burden, then the burden shifts to the nonrelocating parent to show that the
proposed relocation is not in the child’s best interests. I.C. § 31-17-2.2-5(d).
[10] 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[s] of the
child” include 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
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child’s best 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).
[11] The trial court made sua sponte findings in denying Mother’s relocation
request. 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.Court of Appeals of Indiana | Memorandum Decision 48A05-1411-DR-532 | August 4, 2015 Page 7 of 11
[12] Assuming without deciding that Mother met her burden of proving that her
move to Albion was made for a good-faith and legitimate reason, we focus
on the trial court’s conclusion that relocation was not in the children’s best
interests. 1 At the hearing, Mother testified that she relocated to Albion for
financial reasons: after being ill, Mother lost her jobs and could not afford her
rent in Pendleton. In Albion, she lived with her mother in a three-bedroom
house. Mother was not employed, but she planned to attend nursing school at
a local Ivy Tech campus, and maternal grandmother would watch the children.
Mother admitted that after moving to Albion, she made educational decisions
for the children without consulting Father. She also acknowledged that Father
had a great relationship with the children and that it would be difficult for the
children to see Father much less than usual.
[13] In denying Mother’s relocation request, the trial court noted that Mother’s
relocation “dramatically reduced [Father’s parenting time] due to the significant
distance between the parties’ respective residences,” which, in turn, threatened
Father’s relationship with the children. Appellant’s App. p. 10. The court also
expressed concern about Mother’s plan to leave the children in maternal
grandmother’s care:
[W]hen Mother is gone, Grandmother watches the children.
However, when the parties were married, the parties agreed not to
allow Grandmother to watch the children due to concerns about
1
The trial court issued no findings regarding whether Mother met her burden of proving that the move was
being made in good faith and for a legitimate reason; the court simply discussed the children’s best interests.
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Grandmother’s mental health. Mother testified that Grandmother
continues to suffer from depression. As a result, allowing
Grandmother, who is still experiencing mental-health issues, to be the
primary caregiver when Mother is gone raises the same concerns the
parties had while married about the children’s well-being when in
Grandmother’s care.
Id. at 11. Finally, the court emphasized Mother’s recent unilateral decision-
making:
Mother has violated the parties’ joint custody arrangement since
moving to Albion [] by enrolling the children in a private Christian
school without consulting Father. Whether or not the distance
between the parties has given Mother the impression that she can now
act unilaterally on behalf of the children, it is clear that Mother’s
relocation has negatively impacted Father’s ability to participate in the
decision-making process concerning the children.
Id.[14] The trial court heard the parties’ testimony and examined the evidence,
ultimately finding that relocation to Albion was not in the children’s best
interests. In light of the evidence set forth above, we cannot say that this was
error.
2. Custody Order
[15] Mother also argues that the trial court impermissibly ordered a prospective
change of custody to Father. We disagree.
[16] 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
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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 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.[17] In the order at issue, the court stated that “in the event Mother chooses to
remain in Albion . . . Father shall be granted physical custody of the []
children,” but if Mother “returns to [Pendleton], the current order as to custody
and parenting time shall remain in effect.” Appellant’s App. p. 11. This order
was a determination of present custody under carefully designated conditions in
that Mother had already relocated to Albion; thus, the order did not hinge on
any possible future event. 2 Rather, the court’s order is a conditional
2
For this reason, Myers v. Myers, 13 N.E.3d 478 (Ind. Ct. App. 2014), upon which Mother relies, is
distinguishable. In Myers, the mother wished to relocate to Texas with one of the parties’ children, but the
trial court denied her request. There, the court ordered “that if [Mother] still intends to relocate to Texas [,] [
] custody of [H.M.] shall be modified and awarded to [Father]. . . .” 13 N.E.3d at 486. Thus, the court’s order
operated to automatically modify custody upon the happening of a future event—Mother’s relocation to
Texas. Here, Mother has already relocated; the trial court’s order is simply a conditional determination of
present custody.
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determination of present custody: if Mother remains in Albion, Father will have
physical custody of the children. We find no error here.
[18] Affirmed.
Kirsch, J., and Bradford, J., concur.
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