Andrew M. Shaw v. Tera A. Shaw (mem. dec.)

MEMORANDUM DECISION
Jun 09 2015, 5:53 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 ATTORNEY FOR APPELLEE
Katharine Vanost Jones Jonathan M. Young
Evansville, Indiana Law Office of Jonathan M. Young, P.C.
Newburgh, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew M. Shaw, June 9, 2015
Appellant-Respondent, Court of Appeals Case No.
87A04-1411-DR-527
v. Appeal from the Warrick Superior
Court.
The Honorable Keith A. Meier,
Tera A. Shaw, Judge.
Appellee-Petitioner Cause No. 87D01-1304-DR-440
Baker, Judge.
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[1] Andrew Shaw (Father) appeals the trial court’s order granting the notice of
intent to relocate filed by Tera Shaw (Mother). Father argues that 1) the trial
court erred when it allowed Mother to relocate with their child over Father’s
objection without a hearing; 2) the trial court violated Father’s rights under the
Servicemembers Civil Relief Act1 when it denied his motion to enjoin Mother
from relocating; 3) the trial court erred in allowing Mother to relocate when it
was not in the best interest of Z.L.S.; and 4) the trial court erred when it entered
a parenting time order that included an automatic forfeiture provision. We
affirm.
Facts
[2] Father and Mother were married on November 23, 2009. Their marriage
produced one child, Z.L.S., born on October 31, 2010. In October 2012,
Father, who is a member of the armed forces, was deployed to Korea. On April
12, 2013, Mother filed her petition for dissolution of marriage. On August 29,
2013, the trial court approved the parties’ mediated settlement agreement and
summary decree of dissolution. According to the agreement, Mother had
primary physical custody of Z.L.S., while the parties shared modified joint legal
custody, with Mother having the final say after considering Father’s input. The
agreement provided that when Father returned to Indiana, “the legal custody
1
This Act was formerly known as the Soldiers’ and Sailors’ Civil Relief Act.
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arrangement shall automatically modify to joint custody.” Appellant’s App. p.
41.
[3] In December 2013, Mother and Z.L.S. flew to the state of Washington to stay
with David Brown. Mother took suitcases and Z.L.S.’s puppy with her.
Mother and Brown were married on December 13, 2013.2 On January 8, 2014,
Mother filed her notice of intent to relocate, which stated that she intended to
relocate to Washington on or about March 7, 2014. At a hearing on July 10,
2014, Mother testified that she did not file her notice of intent to relocate before
she arrived in Washington because she did not know that her visit was going to
become permanent and that she did not bring her car or most of her personal
property with her when she left for Washington in December 2013. Father was
deployed overseas when he received the notice of intent to relocate.
[4] On January 24, 2014, Father filed a motion to stay a trial court order modifying
child support. On January 31, 2014, the trial court set a hearing date of
February 14, 2014. On February 3, 2014, with agreement of the parties, the
February 14 hearing date was vacated and reset for June 27, 2014.
[5] Father filed an objection to relocation on February 24, 2014, requesting that
Mother be enjoined from relocating pending a hearing. In his objection,
however, he did not request a preliminary hearing on the matter nor did he ask
2
In its order, the trial court states that Mother and Stepfather were married on December 8, 2013, but
Mother testified that they were married on December 13, 2013. Tr. p. 68.
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for custody of Z.L.S. Instead he requested that the matter be heard on June 27,
2014. On February 25, 2014, the trial court issued an order stating that a
hearing would be held on the matter, also on June 27, 2014. The trial court
neither gave permission to nor prevented Mother from staying in Washington.
On March 5, 2014, Mother filed a motion for a continuance. The continuance
was granted and the hearing was reset for July 10, 2014.
[6] Father returned to Indiana on June 10, 2014. A hearing was held on July 10,
2014, and August 19, 2014. On October 13, 2014, the trial court issued its
order granting Mother’s request to relocate. In its order, the trial court sua
sponte issued findings of fact and conclusions of law. The trial court noted that
Mother had failed to timely filed a notice of intent to relocate, but it determined
that Mother had acted in good faith in relocating and that the relocation was
done for a legitimate reason. It also found that the current custody
arrangement was in the best interest of Z.L.S. and that Mother would retain
primary physical custody. In regards to parenting time, the trial court
determined that father was required to notify Mother in writing at least ninety
days prior to the first day of his selected visitation to inform her of the date and
time he would pick up Z.L.S. Father now appeals.
Discussion and Decision
I. Standard of Review
[7] Father argues that the trial court erred when it allowed Mother to relocate.
When the trial court enters findings sua sponte, the specific findings control
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only as to the issues they cover, while a general judgment standard applies to
any issue upon which the court has not found. Julie C. v. Andrew C., 924 N.E.2d
1249, 1255 (Ind. Ct. App. 2010). The specific findings will not be set aside
unless they are clearly erroneous, and we will affirm the general judgment on
any legal theory supported by the evidence. Id. A finding is clearly erroneous
when there are no facts or inferences drawn therefrom that support it. Id. at
1255–56. In reviewing the trial court’s findings, we neither reweigh the
evidence nor judge the credibility of the witnesses. Id. at 1256. Rather, we
consider only the evidence and reasonable inferences drawn therefrom that
support the findings. Id.
[8] In addition, we review custody modifications for abuse of discretion, with a
preference for granting latitude and deference to our trial judges in family law
matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). We set aside judgments
only when they are clearly erroneous, and we will not substitute our own
judgment if any evidence or legitimate inferences support the trial court’s
judgment. Id. Therefore, on appeal it is not enough that the evidence might
support some other conclusion; rather, the evidence must positively require the
conclusion contended for by appellant before there is a basis for reversal. Id.
II. Notice of Intent to Relocate
[9] Father first argues that the trial court erred when it summarily allowed Mother
to relocate. He maintains that the trial court was required to hold a hearing and
make findings to support its decision as required by Indiana Code section 31-17-
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2.2-6(b). Father is correct that, pursuant to Indiana Code section 31-17-2.2-
1(a), a relocating parent must file a notice of intent to relocate and send a copy
of that notice to the nonrelocating parent. This notice of intent is required to be
sent no later than ninety days before the date the relocating parent intends to
move, or, if the relocating individual is unable to provide the information at
that time, no later than thirty days before the intended relocation. I.C. § 31-17-
2.2-3. A nonrelocating parent may object to the intended relocation in one of
two ways: by filing a motion to modify the custody order or by filing, within
sixty days of receipt of the notice of intent to relocate, a motion to prevent the
relocation of the child. T.L. v. J.L., 950 N.E.2d 779 (Ind. Ct. App. 2011). Upon
request of either party, the trial court shall hold a full evidentiary hearing to
grant or deny a motion to prevent relocation of the child. I.C. § 31–17–2.2–
5(b).
[10] Father argues that the trial court erred when it did not enjoin Mother from
relocating to Washington pending the July 10, 2014, hearing on the matter. He
argues that the trial court was required to hold a preliminary hearing to
determine whether to grant his request for a preliminary order to enjoin Mother
from relocating. He states that the trial court failed to follow the required
procedure before denying a nonrelocating parent’s request to prohibit
relocation.
[11] However, this argument mischaracterizes the trial court’s actions. The trial
court did not deny Father’s request to prohibit Mother from relocating without
a hearing. Indeed, it was not until after a July 10, 2014, hearing on the matter
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that the trial court reached its conclusion. It did not, however, grant Father’s
request that Mother be enjoined from relocating until the hearing. However,
the trial court did not permit mother to relocate to Washington; she went to
Washington without the leave of the trial court. It neither gave permission to
nor prevented Mother from staying in Washington.
[12] We do recognize that Mother failed to correctly file her notice of intent to
relocate. She was required, pursuant to Indiana Code section 31-17-2.2-3, to
send that notice to Father at least thirty days before relocating.
[13] However, we also note that Father did not request a preliminary hearing.
Instead, he requested that the matter be dealt with at the hearing set for June
27, later continued to July 10. Father did not request an earlier hearing,
although one was scheduled for February 14, and Father could have been
represented by counsel at that hearing. Father was out of the country at the
time he filed his objection to the intent to relocate, and Mother had recently
married in Washington. The trial court could have enjoined Mother from
staying in Washington with Z.L.S., but she was the only parent currently able
to care for Z.L.S. Furthermore, Father did not request custody of Z.L.S., again
meaning that Mother was the only parent able to care for her. Under these
circumstances, we do understand that the trial court was placed in a difficult
position. While it is possible the trial court may have been able to find a better
solution in this situation, we cannot think of what that solution might have
been. Therefore, we do not find that the trial court erred by allowing the
situation to remain as it was until the July 10, 2014, hearing.
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III. The Servicemembers Relief Act
[14] Father next argues that the trial court violated his rights under the
Servicemembers Civil Relief Act when it failed to enjoin Mother from
relocating to Washington. The Servicemembers Civil Relief Act was “enacted
to protect those who have been obliged to drop their own affairs to take up the
burdens of the nation from exposure to personal liability without an
opportunity to appear and defend in person or through counsel.” Collins v.
Collins, 805 N.E.2d 410, 414 (Ind. Ct. App. 2004) (internal quotations
removed). Section 522 of the Act provides that it applies to any civil action or
proceeding, including any child custody proceeding, in which the plaintiff or
defendant at the time of filing an application under this section 1) is in military
service or is within 90 days after termination of or release from military service,
and 2) had received notice of the action or proceeding. Section 522 grants court
the authority, if certain conditions are met, to stay a proceeding in which a
servicemember is a party: “at any stage before final judgment in a civil action or
proceeding in which a servicemember described in subsection (a) is a party, the
court may on its own motion and shall, upon application by the servicemember,
stay the action for a period of not less than [ninety] days.” 50 App. U.S.C. §
522.
[15] Father argues that, as the trial court was aware that he was in the military and
deployed overseas, it erred when it denied his request to enjoin Mother from
relocating to Washington. Father argues that he was harmed when the trial
court allowed Mother to relocate without a hearing.
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[16] Father again mischaracterizes the trial court’s actions in this case. We note that
the trial court did not allow Mother to relocate. Mother traveled to
Washington without leave of the trial court. The decision to allow Mother to
relocate was not made until after the July 10 hearing. Father did not request a
preliminary hearing on his request to enjoin mother from staying in
Washington pending a hearing on the relocation. Father could have been
represented by counsel at a preliminary hearing, but instead, he asked that the
trial court set a hearing on the matter for June 27, 2014. Here, the trial court
did not make any decisions regarding relocation until after the hearing on July
10, 2014, and, therefore, it did not violate Father’s rights under the
Servicemembers Relief Act.
IV. Best Interest of Z.L.S.
[17] Father also argues that the trial court erred in allowing Mother to relocate
because relocation was not in the best interest of Z.L.S. As noted above, we
will set aside judgments in custody modifications only when they are clearly
erroneous, and we will not substitute our own judgment if any evidence or
legitimate inferences support the trial court's judgment. Dixon v. Dixon, 982
N.E.2d 24, 26 (Ind. Ct. App. 2013). Under the relocation statute, a trial court
must make two inquiries:
First, the relocating parent must establish that the relocation is being
made in good faith and for a legitimate reason. Ind. Code § 31–17–
2.2–5(c). If the relocating parent satisfies that burden, the burden shifts
to the non-relocating parent to show that the proposed relocation is not
in the best interests of the child. I.C. § 31–17–2.2–5(d). In general, the
trial court must consider the financial impact of relocation on the
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affected parties and the motivation for the relocation in addition to the
effects on the child, parents, and others, such as siblings or other
persons who may significantly affect the children’s best interests, as
relevant to every change of custody.
Id.
In addition, pursuant to Indiana Code section 31-17-2.2-1, the trial court shall
consider 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.
Father maintains that the trial court erred in its consideration of these factors.
[18] Father focuses his argument on two issues: 1) he argues that the trial court did
not adequately consider Z.L.S.’s interaction and relationships with parents,
extended family, friends, and other persons, and 2) he claims that the trial court
failed to consider the hardship of the relocation upon Father's parenting time
with Z.L.S.
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[19] Here, the trial court specifically noted that it “considered the factors set forth in
I.C. 31-17-2.2-1 and 31-17-2-8, judged the best interest of the Child and the
other conditions and circumstances in the context of the whole environment.”
Appellant’s App. p. 11. In addition, the trial court noted that “there exist
certain favorable and unfavorable aspects to each of the [parties’] lives and
circumstances.” Id. It then determined that, based upon the facts of this case,
“the evidence does not support the conclusion that relocation is not in the best
interest of the Child. The current custody arrangement is in the best interest of
the child.” Id. While the trial court noted that Mother failed to timely file her
notice of intent to relocate, it also noted that Father had failed to do so in the
past and found that Mother had a good faith and legitimate reason for
relocating.
[20] Regarding Z.L.S.’s interaction and relationships with her parents and extended
family, the record shows that Mother has always been Z.L.S.’s primary physical
caretaker. Z.L.S. has moved several times throughout her short life, and we
note that Mother has been the one constant in her life. While Father is correct
that Z.L.S. does have extended family in Indiana, Z.L.S. had spent only a year
in Indiana while Mother lived with her parents. The record shows that Mother
has ensured that Z.L.S. maintains a close relationship with her maternal
grandmother through technological means such as Skype. Paternal
grandmother also stated that Mother has helped to ensure that Z.L.S. stays in
contact while in Washington. Under these circumstances, we cannot say that
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the trial court abused its discretion by finding that relocation was in the best
interest of Z.L.S.
[21] Regarding the hardship to Father, while we recognize that Washington is far
from Indiana, the record shows that Mother is willing to facilitate contact
between Father and Z.L.S. The trial court recognized that there would be costs
and inconveniences for Father in exercising parenting time, but found that there
would not be extreme hardship and expense. The trial court noted that Mother
and Brown have also offered to help defray the cost of travel with the “space
available” program available to Brown because he is a member of the active
duty Guard and Reserve. Id. at 13. The program would allow for tickets to be
purchased at $30 or $40 a person. The trial court ordered that the parties
cooperate in using the “space available” program. Id. Clearly, the trial court
considered the hardship to Father and determined that the hardship and
expense was not such that Mother should be prevented from relocating. We
find that the trial court adequately considered the required factors and that it
did not err in allowing Mother to relocate.
V. Advance Notice of Parenting Time
[22] Father also argues that the trial court erred when it required him to give Mother
ninety days advance notice of the date and time he will pick up Z.L.S. for
parenting time. He maintains that the trial court should not have ordered that
his parenting time would be forfeited if he failed to give notice.
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[23] Father argues that the automatic forfeiture of his parenting time is a restriction
in violation of Indiana Code section 31-17-4-2, which provides:
The court may modify an order granting or denying parenting time
rights whenever modification would serve the best interests of the
child. However, the court shall not restrict a parent’s parenting time
rights unless the court finds that the parenting time might endanger the
child’s physical health or significantly impair the child’s emotional
development.”
Father maintains that the trial court did not find that parenting time might
endanger Z.L.S.’s physical health or impair her emotional development and
that, therefore, the trial court erred in ordering the ninety-day notice
requirement.
[24] We find that the notice requirement is not a restriction of the kind contemplated
by Indiana Code section 31-17-4-2. The notice requirement was put in place
because the trial court was taking into account the fact that visitation in this
case will require cross-country travel. Furthermore, Father provides no
authority for the proposition that forfeiture for failure to follow a notice
requirement is a restriction of parenting time as anticipated by Indiana Code
section 31-17-4-2. Therefore, we do not find that the trial court erred in
imposing a notice requirement.
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[25] The judgment of the trial court is affirmed.
Najam, J., and Friedlander, J., concur.
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