In re the Marriage of Tina M. Harpenau v. Robin P. Harpenau

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
WALTER R. HAGEDORN II JAMES G. TYLER
Law Office of Walter R. Hagedorn II Tyler Law Office
Tell City, Indiana Tell City, Indiana
Sep 12 2014, 8:52 am
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF )
TINA M. HARPENAU, )
)
Appellant-Petitioner, )
)
and ) No. 62A01-1401-DR-37
)
ROBIN P. HARPENAU, )
)
Appellee-Respondent. )
APPEAL FROM THE PERRY CIRCUIT COURT
The Honorable Lucy Goffinet, Judge
The Honorable Karen Werner, Magistrate
Cause No. 62C01-1301-DR-44
September 12, 2014
OPINION - FOR PUBLICATION
ROBB, Judge
Case Summary and Issues
When Tina (“Mother”) and Robin (“Father”) Harpenau were divorced in August
2013, the parties agreed to joint legal custody of the parties’ two minor children with
Mother to have primary physical custody subject to Father’s parenting time. In October
2013, Mother filed a notice of intent to relocate to Scott County; Father filed a petition to
modify custody objecting to the move. The trial court found Mother’s proposed relocation
was made in good faith and for a legitimate reason but that it was not in the best interests
of the children. Accordingly, the trial court granted Father’s petition to modify, awarding
primary physical custody to Father, granting Mother the same parenting time as Father
originally had, and ordering Mother to pay child support. Mother appeals, raising two
issues for our review: 1) whether the trial court abused its discretion in granting Father’s
petition to modify; and 2) whether the trial court abused its discretion in modifying child
support. Concluding the trial court did not abuse its discretion in modifying custody due
to Mother’s proposed move or in modifying child support accordingly, we affirm.
Facts and Procedural History
Mother and Father were married in 2005 and have two children, V., born in 2007,
and I., born in 2009. The parties’ marriage was dissolved on August 29, 2013, and personal
and property issues were settled by a Dissolution of Marriage Settlement Agreement.
Relevant to the issues on appeal, the agreement provides:
4. CUSTODY OF CHILD AND PROVISIONS FOR SUPPORT. . . .
a. [Mother] and [Father] shall have joint legal custody of [the
children], with [Mother] being primary physical custodian, subject to
[Father’s] parenting time. The parenting time schedule with the children
shall be as follows: . . . [Father’s] parenting time during the children’s school
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year shall be each week beginning on Friday at 5:00 o’clock P.M. and ending
on Sunday at noon. During the children’s summer break, [Mother] and
[Father] shall switch the parenting time schedule wherein [Mother’s] weekly
parenting time will be the same as [Father’s] was during the school
year . . . .
***
c. [Mother] intends on relocating her residence to a location in Floyd
County, Indiana. [Father] intends on relocating to another residence in Perry
County. [Mother] and [Father] both waive any objection to and consent to
the first location of each party mentioned herein without filing a Notice of
Intent as required by Indiana law. The waiver and consent to the first
relocation shall not be construed as a waiver to any subsequent relocation
made by the parties and the parties acknowledge that they shall be required
to follow Indiana law prior to relocating their residence any time after the
first relocation.
d. [Father] shall not be required to pay weekly child support to
[Mother] at this time, which is a deviation from the Indiana Child Support
Guidelines. [Mother] and [Father] shall each pay one-half of all expenses of
the children for extracurricular activities, school fees, books, and lunches and
clothes. The payment of these expenses shall be intended to be child
support. . . . [Mother] and [Father] each believe it is in the best interests of
the children to handle the support of the children in this method at the present
time.
Appellant’s Appendix at 17-18.
On October 4, 2013, Mother filed a notice of intent to move to a residence in Scott
County, Indiana. In her notice, she stated that she “is moving to establish a new residence
and cohabit with Mr. Eric J. Payne, who owns the residence to which [she] and children
will be moving. The residence is within a closer proximity to [Mother’s] place of work
than her current residence.” Id. at 24. In response, Father filed a petition to modify,
objecting to the move and requesting the custody arrangement be modified to grant him
primary physical custody of the children with Mother to have appropriate parenting time.
At the hearing on Father’s motion, Father testified extensively about his research
into the various school districts in and around his home in Perry County, Floyd County,
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and Mother’s proposed home in Scott County. He had consented in the decree to Mother’s
move to Floyd County because he believed the schools were good and the driving distances
between their homes, work, and schools were reasonable. He objected to her move to Scott
County because he believed the schools were inferior to the schools in both Perry and Floyd
Counties; his drive time to the children and to their schools would increase; and he had
concerns about the level of criminal activity in and around the proposed home and schools
in Scott County. There was evidence of numerous family members on both Mother’s and
Father’s side who reside in Perry County, whereas there are no family members in Scott
County.1 At the conclusion of the hearing, the trial court announced that it was granting
Father’s petition to modify and later issued an order formalizing its decision:
1. Pursuant to I.C. § 31-17-2.2-5(c), [Mother] has proved that her
proposed relocation to Scott County, Indiana is made in good faith and for a
legitimate reason.
2. Pursuant to I.C. § 31-17-2.2-5(d), [Father] has met his burden by
showing that the proposed relocation is not in the best interests of the children
of the parties.
3. This lack of best interest for the children is proved by the fact that
[Mother] is proposing to relocate to Scott County, Indiana which is one hour
and twenty minutes by motor vehicle from [Father’s] present residence
meaning that [Father] would have to travel one hour and twenty minutes one
way in order to exercise parenting time with the children.
4. That there has been no evidence shown of the significance and the
duration of the relationship that [Mother] has with her boyfriend, Eric Payne,
with whom she is to live with in Scott County, Indiana.
5. There are no family members of either [Father] or [Mother] present
in Scott County, Indiana. There are significant numbers of relatives of both
[Father] and [Mother] in Perry County, Indiana.
6. When [Mother] moves to Scott County, Indiana and lives with her
boyfriend, Eric Payne, she will have no legal interest in the house of Eric
Payne so that if she and Eric Payne break up, [Mother] and the children will
1
Mother had not yet moved at the time of the hearing, as her relocation had not been approved by the court.
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then be out of living accommodations and [Mother] and the children will
then have to find another place to live.
7. That the proposed move would result in circumstances so
substantial and continuing in nature that it is not in the best interests of the
children for their custody to be moved with [Mother] to Scott County,
Indiana.
8. Thus, [Father’s] Petition to Modify Custody should be granted and
that joint custody will continue between [Father] and [Mother] with [Father]
to be the primary custodial parent of the two minor children of the parties
and [Mother] being the secondary custodial parent . . . . Pursuant to the
testimony given, [Mother] will have the same parenting time schedule that
[Father] has had since the entry of the Decree of Dissolution of
Marriage. . . .
Id. at 6-8.
In addition, at Father’s request during the hearing, the trial court took judicial notice
of the child support worksheet that was attached to the decree of dissolution. Father
testified that the income figures reflected therein had not changed since that time. See
Transcript at 21. At the conclusion of the hearing, after granting the modification of
custody, the trial court requested a proposed child support worksheet for purposes of
modifying the support order to reflect the change of custody. As neither party had prepared
one nor did either party offer to do so, the trial court figured child support using the figures
from the previous child support worksheet and ordered:
10. [Mother] shall pay to the Clerk of the Perry Circuit Court the sum
of $119.00 per week for child support for the minor children of the
parties . . . . The present provision that each party pay one-half of all
expenses for the children for extracurricular activities, school fees, books,
lunches and clothes is hereby eliminated. A copy of the child support
obligation worksheet is attached hereto . . . .
Id. at 9.
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Mother now appeals the trial court’s modification of custody and child support
order.
Discussion and Decision
I. Modification of Custody
A. Standard of Review
“We review custody modifications for abuse of discretion with a preference for
granting latitude and deference to our trial judges in family law matters.” Wilson v. Myers,
997 N.E.2d 338, 340 (Ind. 2013) (quotation omitted). In reviewing the trial court’s
determination, we neither reweigh evidence nor judge the credibility of witnesses. Joe v.
Lebow, 670 N.E.2d 9, 23 (Ind. Ct. App. 1996). We will not substitute our judgment if any
evidence or legitimate inferences support the trial court’s judgment. Kirk v. Kirk, 770
N.E.2d 304, 307 (Ind. 2002).
B. Modification Due to Relocation
When a parent files a notice of intent to relocate, the nonrelocating parent may
object by filing a motion to modify custody or to prevent the child’s relocation. Ind. Code
§§ 31-17-2.2-1(b); 31-17-2.2-5(a). The relocating parent then has the burden of proving
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, the burden then shifts to the
nonrelocating parent to show that the proposed relocation is not in the best interest of the
child. Ind. Code § 31-17-2.2-5(d). In considering a proposed relocation, the trial court
must weigh the following statutory factors:
(1) The distance involved in the proposed change of residence.
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(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). The “[o]ther factors affecting the best interest of the child”
include the statutory factors relevant to an initial custody order or modification thereof,
such as the child’s age and sex; the parents’ wishes; the child’s wishes; the child’s
relationship with parents, siblings, and other persons affecting the 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, 1257 (Ind. 2008). However, when a parent
is relocating, the trial court does not need to find a substantial change in one of those “other
factors” before modifying custody. Baxendale, 878 N.E.2d at 1257.
Assuming without deciding that Mother met her burden of proving her proposed
move was being made for a good faith and legitimate reason,2 we focus on the trial court’s
determination that relocation was not in the children’s best interests. The trial court is
2
The trial court’s written order stated no reasons supporting its finding that Mother had proved a good faith
and legitimate reason for her proposed move, but in its ruling from the bench, the trial court stated that Mother “has
proven that the proposed location is made in good faith and for a legitimate reason . . . she is moving there for her
boyfriend . . . it is a little bit closer to her work than she is now . . . .” Tr. at 197. We also note that a move to Scott
County would put her residence within the same time zone as her job. A move to Floyd County as contemplated by
the decree would have the same effect with respect to distance and time zone.
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required to consider all the enumerated factors listed in section 31-17-2.2-1(b), and
therefore the parent seeking modification must present evidence on each of those factors.
Wolljung v. Sidell, 891 N.E.2d 1109, 1113 (Ind. Ct. App. 2008). Although the trial court
did not make specific findings about each factor,3 our review of the record shows that there
was sufficient evidence of each relevant factor to support the trial court’s decision.
Father testified that he lives on a 160 acre property in Perry County that is also home
to his parents and his grandmother. Both he and Mother have many relatives in close
proximity to Father’s home, most within fifteen minutes. The parties’ oldest child had
already started kindergarten in Perry County, but Father testified he had agreed for Mother
to relocate to Floyd County because after researching schools and considering the location
of homes and work, “I felt Floyd County you could throw a dart at it. She could live
anywhere, be within good distance to her work and split the middle between [my home and
her work] and there was [sic] two (2) schools, good school corporations.” Tr. at 32. He
testified that Mother told him she was moving to Scott County instead to be closer to her
work and to get help with the kids from her boyfriend and his family. Father was
unimpressed with the Scott County schools and with the area to which she proposed
moving. Father introduced maps and provided testimony regarding the various locations
at issue showing that both his and Mother’s current drives from home to Perry County
schools were approximately five minutes; that his drive from home to the proposed Scott
County location would be one hour and twenty minutes and from work to the proposed
3
In modifying custody, the trial court is not required to issue special findings unless requested by a party.
In re Paternity of J.T., 988 N.E.2d 398, 400 (Ind. Ct. App. 2013).
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Scott County location would be approximately one hour and forty-five minutes; and that
Mother’s drive from work to the Scott County location would be approximately thirty-five
minutes. Father conceded Mother’s drive to work would be substantially shorter from the
Scott County location than it was from Perry County. He also testified that “everything
has been worked out between us” with regard to spending time with the children. Tr. at
70. There was evidence that under the current arrangement the children got up very early
in order to be taken to the babysitter and accommodate Mother’s work schedule, but that
they would be able to sleep later in Scott County due to being in the same time zone as
Mother’s job. However, they would also be able to sleep later if they resided in Perry
County. So there was evidence regarding the distance, the possible hardship in exercising
parenting time, the feasibility of preserving relationships in Perry County, that there was
no history of contact between the parties and the children being thwarted, and the reasons
Mother had for moving and Father had for objecting.
With regard to the “other factors affecting the best interest” of the children, the trial
court specifically noted that Mother proposed to move in with her boyfriend, Eric Payne.4
Mother and Payne met through their employment with the same company. Father had met
Payne a couple of times at Mother’s work functions prior to the separation, and Payne had
4
Mother argues that the trial court’s finding that Mother’s move to cohabitate with her boyfriend and be in
closer proximity to work was made in good faith and for a legitimate purpose is in direct conflict with the trial court’s
finding that the cohabitation was not in the best interests of the children. A good faith and legitimate move may
nonetheless not be in the child’s best interests. See, e.g., H.H. v. A.A., 3 N.E.3d 30, 36, 39 (Ind. Ct. App. 2014)
(holding trial court erred in finding mother’s proposed relocation out-of-state to be with new husband was not made
in good faith and for a legitimate reason but that the move was nonetheless not in the child’s best interest). We cannot
say the trial court’s decision that moving to live with her boyfriend in a different county than agreed is both a good
faith and legitimate reason for Mother to move and against the best interests of the children is contradictory or against
the logic and effect of the facts and circumstances in this case.
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accompanied Mother when the children were dropped off one time since the separation.
The house Mother proposes to move into is wholly owned by Payne. Mother testified at
some length about the house, but with regard to the relationship stated only that she and
Payne were serious and that his son and the parties’ children got along “really well.” Tr.
at 167. There was no specific testimony regarding the length of their relationship or the
relationship between Payne and the children. There was testimony that Mother had no
relatives in Scott County but that Payne did, and she hoped they would help with the
children. There was no testimony about how the children got along with Payne’s extended
family, however. Because Mother intended for the children to be residing in the same
house with Payne and was apparently relying on him and his family to provide assistance
with the children, the relationships between all these parties are particularly relevant to the
children’s best interests.
We have previously recognized:
While we are not able to say that the trial judge could not have found
otherwise than he did upon the evidence introduced below, this Court as a
court of review has heretofore held by a long line of decisions that we are in
a poor position to look at a cold transcript of the record, and conclude that
the trial judge, who saw the witnesses, observed their demeanor, and
scrutinized their testimony as it came from the witness stand, 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.
Bettencourt v. Ford, 822 N.E.2d 989, 997 (Ind. Ct. App. 2005) (quoting Kirk, 770 N.E.2d
at 307). It is not enough that the evidence might support another conclusion; it must
positively require the conclusion advocated by the appellant in order for us to reverse.
Kirk, 770 N.E.2d at 307. Our courts have long recognized that the welfare of children is
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promoted by affording them permanent residence. Wolljung, 891 N.E.2d at 1111
(quotation omitted).
[C]hildren will normally prosper and mature . . . under a standard of
consistency better than they will otherwise . . . . In the larger sense, then,
stability in surroundings, schooling, relationships, authority figures, daily
routine, economic circumstances, etc. constitute a substantial determinant in
assessing the statutorily enumerated factors relevant to a determination of the
best interests of the child.
Kuiper v. Anderson, 634 N.E.2d 556, 558 (Ind. Ct. App. 1994). Here, unlike many cases,
stability and permanence is promoted by the change in custody because the dissolution
itself and the split custody arrangement is so new. In Father’s physical custody, the
children are able to stay in a place with which they are familiar, be close to their extended
family on both sides, and to continue with their current babysitter and in their current
school. The trial court heard the parties’ testimony and examined the evidence, ultimately
finding that a relocation would be contrary to the children’s best interests. Mother
essentially asks us to reweigh the evidence, which we cannot do. Joe, 670 N.E.2d at 23.
The trial court’s decision is supported by the record, and we cannot say it is an abuse of
discretion.
II. Child Support
Mother also contends the trial court erred in calculating child support based upon
the unsigned and unverified child support worksheet incorporated by reference into the
parties’ settlement agreement which was approved in August 2013. The modification of
child support orders is governed by Indiana Code section 31-16-8-1, which provides a child
support order may be modified “upon a showing of changed circumstances so substantial
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and continuing as to make the terms unreasonable . . . .” Ind. Code § 31-16-8-1(a), (b)(1).
In reviewing a trial court’s modification of child support, we reverse only for an abuse of
discretion. Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 505 (Ind. Ct. App. 2011). An abuse
of discretion occurs when the decision is against the logic and effect of the facts and
circumstances before the court, including any reasonable inferences. Id.
Mother did not object when Father requested the trial court take judicial notice of
the child support worksheet that was attached to the settlement agreement entered only four
months earlier. Father testified that the income figures reflected on that worksheet had not
substantially changed in the interim. Neither Father nor Mother submitted signed or
verified worksheets at the hearing. We have urged trial courts in the exercise of their
discretion to require verified child support worksheets in every case. Butterfield v.
Constantine, 864 N.E.2d 414, 417 (Ind. Ct. App. 2007). However, in this case, we conclude
that Mother’s failure to object to the trial court taking judicial notice of the unsigned and
unverified worksheet upon which the initial child support amount was figured constituted
a waiver of her right to appeal the trial court’s order on the grounds that the worksheet the
trial court used was unsigned and unverified. See id. (holding that father waived his right
to appeal the trial court’s child support order on the grounds that mother submitted an
unverified worksheet because father also failed to produce a verified worksheet or any
relevant evidence, failed to object to mother’s lack of a verified worksheet, and tacitly
agreed to proceed without a verified worksheet). Waiver notwithstanding, we conclude
the trial court acted within its discretion in modifying the child support order due to the
change in primary physical custody from Mother to Father. The trial court also acted within
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its discretion in figuring the modified child support based upon the previous child support
worksheet in light of the fact that so little time had passed since the worksheet had
originally been prepared, Father testified that the figures had not changed, and Mother did
not submit her own worksheet or otherwise challenge the income figures.
Conclusion
For the foregoing reasons, we conclude that the trial court did not abuse its
discretion in granting Father’s petition to modify custody or in modifying the child support
order to reflect that change. We therefore affirm the judgment of the trial court.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
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