Nicole (Mooney) Thompson v. Terry Mooney, Jr.

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 FILED
Aug 09 2012, 9:17 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JAIMIE L. CAIRNS DYLAN A. VIGH
Ruppert & Schaefer, P.C. Law Office of Dylan A. Vigh, LLC
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NICOLE (MOONEY) THOMPSON, )
)
Appellant-Petitioner, )
)
vs. ) No. 41A05-1201-DR-48
)
TERRY MOONEY, JR., )
)
Appellee-Respondent. )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable Cynthia S. Emkes, Judge
Cause No. 41D02-0909-DR-350
August 9, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Nicole Thompson (“Mother”) appeals the trial court’s order regarding the custody
of T.M., her child with Terry Mooney, Jr. (“Father”). We affirm.
Issue
Mother raises two issues, which we consolidate and restate as whether the trial
court properly denied Mother’s request to relocate to Kansas with T.M. and properly
modified custody to Father.1
Facts
Mother and Father were married and had one child, T.M., born in January 2009.
In September 2009, Father filed a petition for dissolution of his marriage to Mother. In
November 2009, Mother filed a notice of intent to relocate to Kansas, where her family
lives. In January 2010, the trial court denied Mother’s motion to relocate but noted that
the motion could be “addressed in more detail at the final hearing . . . .” Appellant’s
App. p. 4. The trial court ordered that if Mother wanted to renew her motion to relocate,
she should do so in writing twenty days before the final hearing. In March 2010, Mother
filed a second motion to relocate.
The trial court issued a partial decree of dissolution of marriage in September
2010. After an additional hearing, the trial court issued a supplemental decree of
dissolution of marriage in March 2011. On the issue of custody of T.M., the trial court
found:
1
The exhibit binder contains confidential information in violation of Indiana Trial Rule 5(G). Neither
party objected, and consequently, the parties waived the confidentiality of the documents. See Recker v.
Review Bd. of Ind. Dep't of Workforce Development, 958 N.E.2d 1136, 1138 n. 4 (Ind. 2011).
2
[T]he Court finds and concludes it is in the best interest of the
minor child for Mother to be granted sole legal and physical
custody. The Court has considered the recommendations of
the custody evaluator herein; however, the greater weight of
the evidence at trial sustains the Court’s decision herein. If
the parties were able to civilly communicate with one
another, the Court would have found a joint legal custodial
arrangement more reasonable. At this time, the level of
hostility between the parties causes the Court genuine
concern about the well being of the child if he continues to
witness the animosity between the parties. Father displays
evidence of hostility, anger, bitterness, and vindictiveness in
his dealings with Mother, for example, when he refuses to
compromise with Mother on simple matters, makes decisions
without regard to Mother’s concerns, demeans Mother and
her parenting abilities, and makes decisions in his best
interest (without regard to the child’s best interest) if said
decision allows him to undermine Mother’s rights or desires
as a parent. Father admitted in his testimony that he and
Mother can get along, but they refuse to. Father, however,
fails to recognize and admit this role in the continued hostility
between the parties.
Id. at 27. The trial court granted Father parenting time according to the Indiana Parenting
Time Guidelines except that Father was granted extended parenting time overnight
during his mid-week parenting time. When Father filed a motion to clarify whether
Mother was allowed to move to Kansas, the trial court responded that it had granted
Father 150 overnight parenting time credits and that it had counted alternating weekend
overnights, the midweek overnights and extended summer parenting time to arrive at the
150 overnights, implying that it had denied Mother’s relocation request. See Nov. 30,
2011 hearing Tr. (“Nov. Tr.”) p. 94.
On June 6, 2011, Mother filed another notice of intent to relocate. In the notice,
Mother stated that she intended to relocate to Missouri on July 1, 2011, because of a
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workforce reduction at her employer’s business in Indianapolis. According to Mother,
her employer had another position available to her in Missouri. Father filed a response to
Mother’s notice, objecting to the relocation of T.M. to Missouri and asserting that the
notice was untimely. After a hearing, the trial court granted Mother’s request to relocate
to Missouri. The trial court concluded that Mother’s request was made “in good faith and
for a legitimate reason” and that Father did not meet his burden of demonstrating that
relocation was not in T.M.’s best interest. However, the trial court modified custody of
T.M. to joint legal and physical custody between Mother and Father. The trial court
noted that “the strong bond Father has with the minor child . . . should not be hindered by
the relocation.” Appellant’s App. p. 41. The trial court ordered that Father have
parenting time with T.M. for two weeks each month until T.M. started school and
parenting time according to the Indiana Parenting Time Guidelines after T.M. starts
school. Further, the trial court stated: “If Mother’s employment situation changes, the
Court may find the same grounds for a modification of custody, parenting time, support,
or relocation.” Id. at 42. This order was entered on June 30, 2011.
Mother moved to Missouri and started her new job on July 6, 2011. Mother had
told her employer that she wanted to be in Kansas if employment was available there. On
July 7, 2011, Mother’s supervisor called her and said that a position would be opening in
Kansas, but she did not have a start date for the position yet. Mother told her supervisor
that she was interested in the position.
Mother was offered the position on August 3, 2011, she moved to Kansas on
August 12, 2011, and she started her new job on August 15, 2011. On August 22, 2011,
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Mother filed a notice of relocation, noting that she had moved to Kansas with T.M.
Mother explained that her employer had lost a contract and was “laying everyone off” as
of August 31, 2011. Id. at 44. Mother attached a letter dated August 10, 2011, from her
employer, SofTec, regarding the layoff. Father objected to the relocation due to the
increased distance from Indiana and alleged bad faith by Mother. The travel time would
increase from six hours between Missouri and Indiana to ten to twelve hours between
Kansas and Indiana. Father requested physical custody of T.M. in the event that Mother
remained in Kansas.
After a hearing regarding the relocation, the trial court entered sua sponte findings
of fact and conclusions thereon on January 4, 2012. The trial court found that Mother’s
relocation was not “in good faith or for a legitimate reason.” Id. at 19. The trial court
also found that relocation to Kansas was not in T.M.’s best interest because of the
increased distance from Indiana, the increased travel time, Father’s stability, Mother’s
instability in her employment and housing, and Mother’s disregard for T.M.’s best
interest and her poor judgment. The trial court denied Mother’s request to relocate T.M.
to Kansas and modified primary physical custody of T.M. to Father. The trial court
granted Mother parenting time of three months per year until T.M. turns five and
parenting time according to the Indiana Parenting Time Guidelines after that time.
Mother now appeals.
Analysis
Mother argues that the trial court’s order regarding custody of T.M. and her
relocation to Kansas is clearly erroneous. The trial court here entered sua sponte findings
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of fact and conclusions thereon. When the trial court enters findings sua sponte, the
specific findings control 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.Further, 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). The rationale for this deference is that appellate courts “are
in a poor position to look at a cold transcript of the record, and conclude that the trial
judge . . . did not properly understand the significance of the evidence, or that he should
have found its preponderance or the inferences therefrom to be different from what he
did.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
Under the relocation statutes enacted in 2006, a relocating parent must file a notice
of intent to relocate at least ninety days prior to the move and send a copy of the notice to
any nonrelocating parent. Ind. Code § 31-17-2.2-1(a). A nonrelocating parent may
object to relocation either by filing a motion to modify the custody order or by filing,
within sixty days of receipt of the notice, a motion to prevent relocation of the child.
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Baxendale v. Raich, 878 N.E.2d 1252, 1256 n.5 (Ind. 2008); see I.C. §§ 31-17-2.2-2(b) &
31-17-2.2-5. 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). “The 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). If the relocating
parent meets that burden, “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).
In considering the proposed relocation, the trial court shall take into account 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.
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(6) Other factors affecting the best interest of the child.
I.C. § 31-17-2.2-1(b). The “[o]ther factors affecting the best interest of the child”
include, by implication, the factors set forth for custody determinations and modifications
under Indiana Code Section 31-17-2-8. Baxendale, 878 N.E.2d at 1257. The trial court
here found that Mother’s reasons for relocation were not made in good faith and for a
legitimate reason and that relocation was not in T.M.’s best interest. Mother challenges
both of those findings.
Mother had the burden of demonstrating that the relocation from Missouri to
Kansas was made in good faith and for a legitimate reason. See I.C. § 31-17-2.2-5(c).
The trial court concluded that the relocation was not made in good faith or for a
legitimate reason and made several findings in support of that determination. Mother
challenges four of these five findings.
The trial court first found:
Mother had stable employment in Missouri and sought out
employment in Kansas almost immediately upon her
relocation to Missouri despite her testimony at the first
relocation hearing (to Missouri) she would not seek relocation
to Kansas. At the first relocation hearing, Mother testified
that she recognized a move to Kansas would be too far and
she knew Father would object. Mother specifically testified
in the first relocation hearing the move to Missouri was not a
stepping stone to a move to Kansas, when in fact, clearly it
has proven to be just so.
Appellant’s App. p. 19.
Mother argues that this finding is clearly erroneous because her employment in
Missouri was not stable. The trial court granted Mother permission to move to Missouri
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with T.M. on June 30, 2011. Mother moved to Missouri and started her new job on July
6, 2011. Mother had previously informed her employer that she wanted to be in Kansas
if employment was available there. On July 7, 2011, Mother’s supervisor called her and
said that a position would be opening in Kansas, but she did not have a start date for the
position yet. Mother told her supervisor that she was interested in the position.
Mother was offered the job on August 3, 2011, moved to Kansas on August 12,
2011, and started her new job on August 15, 2011. On August 22, 2011, Mother filed a
notice of relocation, noting that she had moved to Kansas with T.M. Mother noted the
reason for the move as:
I received an email from my current contractor last week. My
contractor lost the contract with the government and is laying
everyone off as off [sic] Aug. 31, 2011. The new contracting
company is taking applications and I have already applied
with them for the position in Manhattan, KS. SofTec was
able to get me moved and I am supposed to start on Monday,
August 15, 2011 in Kansas.
Id. at 44 (internal citations omitted). Mother attached a letter dated August 10, 2011,
from her employer regarding the layoff. However, at the November 2011 hearing on the
relocation, Mother testified that she did not lose her job in Missouri and that the job was
still available. Given Mother’s contradictory testimony regarding the status of the
Missouri job and her acceptance of the Kansas job before she received the notice of the
layoff, we cannot say the trial court’s finding regarding the stability of her Missouri
employment is clearly erroneous.
Mother also argues that the testimony mentioned by the trial court in the finding
did not occur during the first relocation hearing. Our review reveals that the June 2011
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transcript does not support the trial court’s finding that Mother testified she would not
seek relocation to Kansas, that Mother recognized a move to Kansas would be too far,
that she knew Father would object, or that the move to Missouri was not a “stepping
stone” to Kansas. However, during the first relocation hearing regarding Mother’s move
to Missouri, Father’s attorney questioned Mother whether the relocation was an attempt
to move closer to her parents in Kansas. Mother testified, “That’s not a purpose of this
move, but I will say it is a benefit, you know, I, I think it’s incredible that a position
would open that is six hours from Mr. Mooney and six hours from my parents. I mean
that’s just incredible.” June 28, 2011 Tr. (“June Tr.”) p. 13.
At the November 30, 2011 hearing, Father’s counsel asked Mother the following:
Q. When we were in court last time do you remember me
asking you on the record while you sat in that chair and I said,
“You, you just want to get to Kansas, don’t you? That’s what
you’re trying to do, this is a stepping stone to get to Kansas”,
remember that question I asked you?
A. No, yes I do remember that question.
Q. Yeah, remember your answer?
A. I said, “No, I’m not trying to get to Kansas.”
Nov. Tr. pp. 43-44. Although our review of the transcript of the June 2011 hearing does
not reveal the testimony mentioned, Mother did not object. Further, Mother later testified
that her goal had always been to move to Kansas and that she had never “hidden the fact”
from the trial court that she wanted to be near her family. Id. at 55. Additionally, Mother
did testify at the November hearing as follows:
Q. Has it always been your goal to get to Kansas?
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A. Yes.
Q. Was Missouri kind of a stopping ground on the way to
get to Kansas?
A. I’d planned on being in Missouri maybe a year to two
years, it just wasn’t just, I mean, just was going to be based
on finding employment or , you know, just based off life . . . .
Id. at 68. Thus, although some of the trial court’s findings regarding Mother’s testimony
from the June hearing are clearly erroneous, evidence was presented at the November
hearing that the move to Missouri was in fact a stepping stone for Mother to move to
Kansas despite the trial court’s rejection of Mother’s earlier request to relocate to Kansas.
The trial court’s second finding regarding Mother’s good faith and legitimate
reasons for relocation was:
Mother testified when questioned by Mr. Kassis that
her job in Missouri started on July 6, on July 8, 2011 she
became aware of an opening in Kansas because she had
requested a transfer to Kansas if an opening was available,
she moved to Kansas shortly thereafter, and she started her
new job in Kansas on August 15, 2001 without notice to
Father and without Court approval. Mother specifically
testified when questioned by Mr. Kassis that her job was still
available in Missouri, but she “made the decision on her own
to move because she really wanted to move.” When
questioned by Ms. Schaefer, Mother changed her testimony
and stated that she had heard a “rumor” that her job in
Missouri might be in jeopardy so that caused her to move to
Kansas. Mother identified Exhibit “B” which outlined notice
to her dated August 10, 2011 that her contract would be
terminated. Mother further testified that she most likely
would have had additional contract work in Kansas [sic]
despite the specific contract termination notice, but that she
had already completed all transfer paperwork to transfer to
Kansas. The Court finds Mother’s testimony that she moved
because she wanted to is more credible than her testimony
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that she moved due to employment termination or due to
better employment options.
Appellant’s App. pp. 19-20. Mother argues that this finding is clearly erroneous because
she did not testify that she “made the decision on her own to move because she really
wanted to move,” that she provided a letter from her employer detailing the layoff, and
that she did not change her testimony.
Mother testified at the November 2011 hearing that, when she was unable to
contact her attorney or prior attorney in early August, she made the decision on her own
to move to Kansas. She also testified that Kansas was where her “heart” really desired to
be. Nov. Tr. p. 40. Although Mother did not make the exact statement described in the
trial court’s finding, she did make other statements that support the finding. As for the
Missouri layoff and change in Mother’s testimony, Mother is merely requesting that we
reweigh the evidence and judge her credibility, which we cannot do. The trial court was
presented with evidence that Mother expressed her interest in a position in Kansas shortly
after moving to Missouri. Although she later formally learned that her Missouri job was
in jeopardy, she had already accepted the Kansas position. Moreover, at the November
2011 hearing, Mother testified that her Missouri job was still available. Whether Mother
moved because of rumors regarding her employment or simply because she wanted to
live in Kansas was a matter of credibility for the trial court to determine. We cannot say
that this finding is clearly erroneous.
Next, in discussing Mother’s good faith and reasons for moving, the trial court
found:
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The Court allowed Mother to relocated to Missouri about one
(1) week before she sought out another move to Kansas with
her employer, and about five (5) weeks before she moved to
Kansas without the Court’s approval. Mother’s relocation
under these facts shows a total disregard for Father’s rights
and the Court’s authority.
Appellant’s App. p. 20. Mother argues that this finding is clearly erroneous because she
gave notice to the Court at the earliest possible date and the move to Kansas had no
impact on Father or his visitation. The evidence demonstrated that, although Mother was
aware in early July that the Kansas opening was a possibility, she did not seek approval
from the trial court until she had already moved and started the job in mid-August. We
cannot say that Mother gave notice to the trial court at the earliest possible time. As for
an impact on Father, Mother moved to Kansas with T.M. without notifying Father and
proposed a different parenting time arrangement, which clearly would have had an
impact on Father. We cannot say that this finding is clearly erroneous.
Mother does not challenge the trial court’s fourth finding, which provided:
Father was granted joint legal and physical custody in the
Court’s Order dated June 30, 2011 after a lengthy, contested
hearing. The Court allowed the move to Missouri, but
changed physical custody to almost a 50/50 split stating, “. . .
based on the relocation and the strong bond Father has with
the child that should not be hindered by the relocation.”
Further in paragraph 11(e) of said Order the Court stated, “If
Mother’s employment situation changes, the Court may find
the same grounds for a modification of custody, parenting
time, support, or relocation.” The Court was so concerned
with Mother possibly relocating against and the effect the
same would have on the Father-child relationship that the
Court went to great lengths to advise Mother of the possible
consequences of an additional move.
Id. at 20-21.
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The trial court’s final finding on Mother’s good faith and legitimate reasons for
moving follows:
When asked by Mr. Kassis if she could have moved back to
Indiana as opposed to Kansas when she moved from
Missouri, Mother stated, “I could have, but what would be the
point? My family and my support are not in Indiana they are
in Kansas.” Mother’s own words demonstrate her failure to
recognize the Father-child relationship is as important as the
Mother-child relationship and should take priority over family
support. Although the law allows the Court discretion to find
a relocation for family support appropriate under certain facts,
under the facts of this case, the Court does not find such. The
Court finds there has always been a strong Father-child
relationship, the child has always had support in Indiana with
Father’s family, and Mother has always had support in
Kansas with her family. Mother’s move appears to be more
likely a gradual effort to distance herself and the minor child
from Father.
Id. at 21.
Mother argues that this finding is clearly erroneous because her testimony
regarding moving to Indiana was taken out of context. At the November 2011 hearing,
Mother testified:
Q. Okay, so you’re telling the Court that you couldn’t
have found a job for ten dollars an hour in Indianapolis?
A. If I’m going to be in Missouri and have a decision
where, you know, I mean, I’ve already moved.
Q. You already did, so we this [sic] to deal with, right?
You’ve already done it.
A. Well, I mean, I can find a job I guess making ten
dollars an hour in Indianapolis, but I don’t see what the point
at all would be.
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Q. You don’t think it would [sic] a point if you leave your
child close to his father so the child doesn’t have to drive
twenty hours a month in a car, you don’t see a point in that?
A. I think there’s better benefits have, being near my
family, I think there’s more support there.
Q. Cause that’s what you wanted from the, from the
beginning, right?
A. I want to have a relationship with my family.
Nov. Tr. pp. 54-55. According to Mother, the trial court took her statements out of
context because she was “questioning why she would relocate yet again when she already
had employment with benefits.” Appellant’s Br. p. 17. The trial court’s point in the
finding is that Mother could have tried to find a comparable job in Indiana but that she
places more value on her relationship with her family than on Father’s relationship with
T.M. We cannot say that the trial court took Mother’s comments out of context in this
finding.
Mother also argues that this finding is clearly erroneous because the move was not
an effort to distance herself and T.M. from Father. Mother argues that it was not her
intention to take T.M. away from Father. Rather, it was her intention to care for her
family. The tension and discord between Mother and Father was well documented, and
Mother’s comments indicate that she placed more value on her relationship with her
family than on Father’s relationship with T.M. Given the evidence, we cannot say that
the trial court’s finding is clearly erroneous.
In summary, except for the trial court’s first finding, we cannot say that the trial
court’s findings are clearly erroneous. We must “disregard any special finding that is not
15
proper or competent to be considered.” In re B.J., 879 N.E.2d 7, 19 (Ind. Ct. App. 2008),
trans. denied. “Additionally, such a finding cannot form the basis of a conclusion of
law.” Id. “We may reverse a trial court’s judgment, however, only if its findings
constitute prejudicial error.” Id. “A finding of fact is not prejudicial to a party unless it
directly supports a conclusion.” Id.The erroneous finding concerns Mother’s testimony from the June hearing. The
trial court erroneously found that Mother testified in June that she would not seek
relocation to Kansas, that Mother recognized a move to Kansas would be too far, that she
knew Father would object, or that the move to Missouri was not a stepping stone to
Kansas. The erroneous finding would be cause for reversal if it were the “sole support
for any conclusion of law necessary to sustain the judgment of the court.” See id.After examining the judgment, we conclude that the erroneous finding does not
constitute the sole support for the trial court’s conclusion that Mother failed to prove
good faith and a legitimate reason for moving. The trial court’s remaining findings,
which are supported by evidence on the record, provide ample support for the trial court’s
conclusion that Mother failed to prove good faith and a legitimate reason for moving. In
particular, the trial court found that Mother moved because she wanted to do so, not
because of employment issues, that Mother moved without notice to Father or the trial
court, that Mother had been warned by the trial court about further relocations, and that
Mother failed to recognize the importance of T.M.’s relationship with Father. The
erroneous finding was “merely harmless surplusage that did not prejudice Mother and,
consequently, is not grounds for reversal.” See id. The trial court’s conclusion that
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Mother’s relocation was not made in good faith and for a legitimate reason is not clearly
erroneous. Reaching a different result would require us to reweigh the evidence and
judge the credibility of the witnesses. That is not within our purview.
Mother also argues that the trial court’s findings regarding T.M.’s best interest are
clearly erroneous. However, “[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). If the relocating parent meets that burden, “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). Mother failed to demonstrate that the Kansas relocation was made in
good faith and for a legitimate reason. Consequently, we need not address whether the
proposed relocation was in T.M.’s best interest.
Conclusion
The trial court’s order denying Mother’s relocation request and granting custody
of T.M. to Father is not clearly erroneous. We affirm.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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