Andrew Romer v. Theresa Romer (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 28, 2020
• Docket: 20A-DC-651
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 28 2020, 8:39 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Nathan D. Hoggatt David L. Joley Fort Wayne, Indiana Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andrew Romer, August 28, 2020 Appellant-Petitioner, Court of Appeals Case No. 20A-DC-651 v. Appeal from the Wells Superior Court Theresa Romer, The Honorable Appellee-Respondent Andrew K. Antrim, Judge Trial Court Cause No. 90D01-1805-DC-40

Vaidik, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 1 of 10 Case Summary [1] Andrew Romer (“Father”) appeals the trial court’s order allowing Theresa

Romer (“Mother”) to move their child to Alaska. Though this is a very close

case, our highly deferential standard of review compels us to affirm.

Facts and Procedural History [2] The following statement of facts is based primarily on the trial court’s findings

of fact, none of which Father challenges.1 Father and Mother began dating in

2009 and married in 2016. They have one child together, a daughter, L.R., born

in October 2017. Mother had been married twice before and has three children

from those marriages, including two school-age daughters who have lived with

L.R. since she was born and who are very close with her.

[3] Between 2013 and 2018, Father was violent toward Mother on five occasions.

The last two times occurred after L.R. was born and in L.R.’s presence. After

the final incident, in March 2018, Father and Mother separated, and Mother

obtained a protective order. Father did not see L.R. for the next eight months.

[4] Father filed for divorce in May 2018. In May 2019, Father and Mother reached

a settlement. Among other things, they agreed that Mother would have primary

1 The trial court’s findings of fact consist largely of a recitation of testimony given at the relocation hearing. It is apparent that the court was accepting as true the referenced testimony, but we encourage it to avoid this practice in the future. See Pitcavage v. Pitcavage, 11 N.E.3d 547, 553 (Ind. Ct. App. 2014), reh’g denied.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 2 of 10 custody of L.R. and that Father would have limited parenting time until May

2020, when he would have full parenting time under the Indiana Parenting

Time Guidelines. The trial court signed off on the settlement on May 13, and

Mother voluntarily relinquished the protective order a few days later. At the

time, both parties were living in or near Wells County.

[5] In June 2019, one month after the divorce was finalized, Mother reconnected

with Craig Schwartz, a family friend who Mother had known for twenty-four

years but who had been living in Alaska since the late 1990s. They spoke every

day, and by July or August, the relationship turned romantic. They saw each

other in person for the first time in September, when Schwartz spent two weeks

in Indiana. In October, Mother visited Schwartz in Alaska, and they decided to

get married.

[6] Mother and Schwartz had a discussion about where they would live. Mother

was working as a nurse’s aide and was sending L.R. to daycare three days a

week. Schwartz owned a construction business in Alaska and was making

about five times as much as Mother. He also owned a house where he lived

with three of his children. The house had five bedrooms, and Schwartz was in

the process of adding a sixth. If Mother and L.R. moved to Alaska, Mother

would not work and would not have any daycare expenses, and L.R. would

have her own bedroom. For those reasons, and because Schwartz would not be

able to recreate his construction business in Indiana, it was decided that Mother

would move to Alaska with L.R. and her two older daughters, whose father

agreed to the move.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 3 of 10 [7] In early November, Mother filed a Notice of Intent to Relocate indicating that

she would be marrying Schwartz on December 1 and that she intended to move

to Alaska with L.R. on December 27. Father objected to L.R. being moved and

asked that he be awarded primary custody if Mother were to move.

[8] The trial court held a hearing on the matter over two days in December.

Mother confirmed that she and Schwartz had gotten married on December 1,

the date indicated in her notice. She acknowledged that she and Father have

gotten along very well since the divorce and that L.R. loves Father, but she also

testified that L.R. had only spent a few overnights with Father since the parties

separated (consistent with the limited parenting time agreed to in the

settlement), she has handled all of L.R. medical appointments, L.R. does not

like to be away from her, and it would be very traumatic for L.R. to be

separated from Mother and her older sisters. Father also testified and called

several witnesses who attested to his close relationship with L.R.

[9] After the hearing, the trial court issued an order allowing Mother to move L.R.

to Alaska. At Mother’s request, the court issued findings of fact and conclusions

thereon pursuant to Indiana Trial Rule 52(A). The court found the facts stated

above but also found that there is an “extreme distance” between Indiana and

Alaska, “Mother’s move will place an extreme hardship and expense” on

Father, and “the feasibility of [preserving] the relationship between [Father and

L.R.] through suitable parenting time considering the financial restraints on all

parties will be extremely difficult with Mother’s proposed move.” Appellant’s

App. Vol. II pp. 17-18. However, it ultimately concluded that the move would

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 4 of 10 be in good faith and for a legitimate reason and would be in L.R.’s best interest.

The court ordered Mother to bring L.R. to Indiana for three two-week visits per

year, twice at Mother’s expense and once at Father’s expense.

[10] Father now appeals.

Discussion and Decision [11] Father contends that the trial court erred by allowing Mother to relocate L.R. to

Alaska. Where, as here, a trial court enters findings of facts and conclusions

thereon under Trial Rule 52(A), we generally review whether the evidence

supports the findings and then whether the findings support the conclusions and

judgment. T.L. v. J.L., 950 N.E.2d 779, 783 (Ind. Ct. App. 2011), reh’g denied.

However, Father does not challenge any of the trial court’s findings of fact, so

we need only determine whether those findings support the court’s conclusions

and judgment.2 In doing so, we remain mindful that trial courts are afforded

particular deference in family-law matters, given their unique, direct

2 At the end of his opening brief, Father says the following, under the heading “Findings not supported by evidence”: Over Father’s counsel’s objection (Tr. p. ) [sic], Mother was permitted to be led through thirty-five (35) pages of transcript where her counsel led Mother to respond she was in fear essentially for a decade, suffered abuse, etc. However, this is the very first time these stories were told. And further, three of the tales allegedly occurred before their Child’s birth, and the fourth asks for speculation on the physics of a disintegrating coffee cup. In essence, this was not an issue for the trial court’s concern, yet it is the only negatives that can be put out into the marketplace or ideas, but only for red herring distraction. Appellant’s Br. p. 16. He does not support this argument with any citations to the record, nor does he identify any specific findings of fact he believes are incorrect.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 5 of 10 interactions with the parties and their superior position to ascertain information

and apply common sense. Id. at 784.

[12] Indiana Code section 31-17-2.2-5(e) provides that when a nonrelocating parent

objects to the proposed relocation of a child, “[t]he relocating individual has the

burden of proof that the proposed relocation is made in good faith and for a

legitimate reason.” Subsection (f) provides that if the relocating individual

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.” Here, the trial

court concluded that Mother met her burden under subsection (e) and that

Father did not meet his burden under subsection (f). Father challenges both

conclusions.

I. Good Faith and Legitimate Reason [13] Father first argues that the trial court erred by concluding that Mother’s

relocation is made in good faith and for a legitimate reason. “[I]t is common in

our society that people move to live near family members, for financial reasons,

or to obtain or maintain employment.” T.L., 950 N.E.2d at 787-88. “We infer

that these and similar reasons . . . are what the legislature intended in requiring

that relocation be for ‘legitimate’ and ‘good faith’ reasons.” Id. at 788. Here,

Father notes that Mother filed her notice of intent to relocate just six months

after the divorce was finalized, Mother will not be working in Alaska, Mother

has no family in Alaska, and this is Mother’s fourth marriage. However, the

trial court made several findings that support its conclusion on this issue.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 6 of 10 [14] Specifically, the court found that: Mother rekindled her relationship with

Schwartz during the summer of 2019, several months before she filed her notice

of intent to relocate; the relationship eventually became romantic; the

relationship intensified as Schwartz spent time in Indiana in September; she

traveled to Alaska in October and Schwartz proposed during her visit; and she

married Schwartz in December. The court also found that Schwartz owns his

own construction company in Alaska, earns much more money than Mother,

and would be unable to recreate his business in Indiana, “as he had spent a

great amount of time in Alaska to create the construction business and the

necessary contacts to maintain such business.” Appellant’s App. Vol. II p. 13.

Finally, the court found that Mother and Schwartz had a “difficult” discussion

about whether they would live in Alaska or Indiana, an indication that Mother

did not come to her decision lightly. Id. In light of these findings, we affirm the

trial court’s conclusion that Mother has a good-faith and legitimate reason for

relocating to Alaska.3

3 Father argues:

Mother entered into the mediated Marital Settlement Agreement with Father and agreed to phase in Father’s full custody, while she was in a romantic relationship with another gentleman. Mother did not inform Father of her relationship with this new man or her intent of moving to the doorsteps of the Kremlin at the time of the Decree, which shows she acted in bad faith in seeking to relocate so soon after the mediated Marital Settlement Agreement and that she did not have a legitimate reason to relocate. Appellant’s Br. p. 12. Father does not cite any evidence that Mother was in a “romantic relationship” with Schwartz, or had the intent to move to Alaska, when the divorce case was settled in May 2019. Mother testified that she did not reconnect with Schwartz until June and that the relationship did not become romantic until July or August.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 7 of 10 II. Best Interest [15] Father also challenges the trial court’s conclusion that the move to Alaska is in

L.R.’s best interest. Our review of the best-interest determination “requires us to

view the evidence in a light most favorable to the trial court’s decision and defer

to the trial court’s weighing of the evidence.” T.L., 950 N.E.2d at 788-79.

[16] Father argues that, if L.R. moves to Alaska, he “would be unable to maintain

his current parenting time schedule” or to “exercise his opportunity for

additional parenting time.” Appellant’s Br. p. 16. He notes that he “has regular,

significant contact with [L.R.] that would not continue if [L.R.] were allowed to

relocate with Mother.” Id. And he points out that the move would make it very

hard for him to be involved in L.R.’s “milestones, education, extra-curricular

activities, and other events, such as holidays and birthdays.” Id.

[17] All of this is true, but again, the trial court made several findings that support its

best-interest determination. The court found that L.R. is closely bonded with

Mother and her two older sisters, and it would be very traumatic for her to be

separated from them. It also found that Schwartz makes enough money that

Mother would not have to work in Alaska and would not have any daycare

expenses. And it found that Mother has been L.R.’s primary caregiver for her

entire life (and for one eight-month stretch her sole caregiver), and L.R. had

only spent a few overnights with Father since the parties separated in March

2018.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 8 of 10 [18] The trial court also found that “there is a pattern of domestic and family

violence perpetrated by [Father] against [Mother], including incidents in the

presence of [L.R.].” Appellant’s App. Vol. II p. 12. Father asserts that this

finding was based on “Mother’s self-serving statement of uncorroborated

violence from years gone by.” Appellant’s Br. p. 13. We make several

observations. First, while Father made a relevance objection to Mother

testifying about pre-divorce domestic violence, he does not appeal the trial

court’s decision to allow that testimony. Second, when Father testified, he did

not deny or contradict any of Mother’s testimony about domestic violence. And

third, as Father himself acknowledges, the factors listed in Indiana Code section

31-17-2-8, including “[e]vidence of a pattern of domestic or family violence by

either parent,” can be considered in relocation cases. Id. at 14 (citing T.L., 950

N.E.2d at 785). While all involved agree that the violence stopped after the

parties separated and that Father and Mother were getting along well by the

time Mother filed her notice of intent to relocate, the history of violence, some

in the presence of L.R., was certainly a valid consideration by the trial court. In

short, we believe this finding, along with the other findings noted above,

supports the trial court’s decision that moving to Alaska with Mother is in

L.R.’s best interest.

[19] Father cites two cases where trial courts concluded that proposed relocations

were not in the best interest of the children, and we affirmed. See DeCloedt v.

Wagaman, 15 N.E.3d 123 (Ind. Ct. App. 2014); T.L., 950 N.E.2d 779. But those

decisions are entirely consistent with our decision here. Both cases were close

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 9 of 10 calls, just like this case is a close call. See DeCloedt, 15 N.E.3d at 131 (“This is

obviously a close case, and the dissolution court was forced to make a very

difficult decision.”); T.L., 950 N.E.2d at 791 (acknowledging that “other

reasonable conclusions than that reached by the trial court in the present case

were possible”). Precisely for that reason, we deferred to the trial courts. We do

the same here.

[20] Affirmed.

Bailey, J., and Baker, Sr. J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-651 | August 28, 2020 Page 10 of 10