MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 17 2017, 8:56 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Lee Money Daun Weliever Greenwood, Indiana Neal Bowling Lewis Wagner, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
G.H., July 17, 2017 Appellant-Respondent, Court of Appeals Case No. 41A04-1701-DR-150 v. Appeal from the Johnson Circuit Court R.E., The Honorable K. Mark Loyd, Appellee-Petitioner Judge Trial Court Cause No. 41C01-0906-DR-269
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 1 of 15 [1] G.H. (Father) appeals from the trial court’s order permitting R.E. (Mother) to
relocate to California with the parties’ children. Father argues that there is
insufficient evidence supporting the order. Finding the evidence sufficient, we
affirm.
Facts [2] Mother and Father were married in 1997. Two children were born of the
marriage: J.H., born in September 2005, and R.H., born in April 2007. The
parties’ marriage was dissolved in 2010, at which time Mother became the
children’s primary legal and physical custodian, and Father was given parenting
time pursuant to the Parenting Time Guidelines.
[3] Since 2010, Mother has been the children’s primary caregiver. She has been
heavily involved with the schools they have attended, has taken them to all
medical appointments, and has supported their involvement with various
extracurricular activities.
[4] Shortly after the divorce, Father moved to another county, approximately sixty
miles away from Mother and the children, because of an employment
opportunity. Because of the distance, Father has not been as involved with the
children’s schools, has never taken them to a medical appointment, and has not
been involved with their extracurricular activities. He spends approximately
three hours with the children each Thursday, and they spend every other
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 2 of 15 weekend with him.1 They also speak on the phone most nights.
Notwithstanding the distance, Father and both children are bonded and have
close relationships.
[5] Mother moved to Indiana in 1997 because of her marriage to Father. All of her
extended family, including her parents, her sister, and her sister’s children, live
in California. She has little to no support network in Indiana. Because of the
lack of nearby support, Mother, who has a master’s degree in secondary
education, has had to find employment that offers significant flexibility, but
little income, so that she can be available for the children. While in Indiana,
she has held various jobs. At the time of the hearing in this case, Mother was
an independent consultant for Norwex, a company that distributes chemical-
free cleaning supplies, and a writer for the Malvern Schools. Both jobs allow
her to have a work schedule that works around the times she needs or wants to
be available for the children. If she had more support, such as nearby family
members who could help with childcare and step in if one of the children got
sick, she would be able to find and maintain a job with higher income.
[6] When Mother and Father divorced, Mother was unable to refinance the marital
residence. Her parents liquidated part of a 401(k) account to provide her with
sufficient funds to pay off the marital residence; as a result, she owes them
1 Under the parties’ agreement, Father is also permitted to have the children spend Sunday nights with him. But because of the distance between his house and the children’s school, it would be impractical for them to do so. Therefore, he has given up that right out of concern for their well-being, as well as his own ability to get to work in a timely fashion on Monday mornings.
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 3 of 15 $60,000. Her parents are aging and, while they still live independently and are
mostly able to care for themselves, are reaching a point in time when they will
need more help for things such as keeping the house clean and maintaining the
lawn and landscaping.
[7] On January 7, 2016, Mother filed a notice of her intent to relocate with the
children to California. Father filed the requisite objection to the relocation, and
a hearing was held on August 16 and October 25, 2016. At the hearing, Mother
explained that if she and the children relocated to California, she planned to
move in with her parents.2 This plan would enable her to provide help to her
parents and would offer her free live-in childcare and more flexibility to find a
job with a much higher income. She had not yet applied for any specific jobs
because of the uncertainty surrounding the litigation, but would be able to
maintain both her Norwex3 and Malvern jobs in California until she
successfully found employment that paid more. The move would also enable
her to sell the marital residence and repay her parents the money that she owed
them.
2 There was some discussion at the hearing about a job that Mother had been interested in (but was filled by the time of the hearing) that would have been a two- to three-hour drive from her parents’ house. Mother explained that even if she had not been able to move in with her parents, that job would have provided sufficient income to allow her to maintain her own residence, and she would have been able to spend time helping her parents on the weekends. Regardless, at the time of the hearing, Mother’s intention and plan was to move in with her parents upon relocation. 3 The move to California would also afford Mother opportunities to dramatically expand her Norwex business.
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 4 of 15 [8] Additionally, the move to California would provide the children with a close
network of extended family members. While some of their extended family
members on Father’s side of the family live in Indiana—indeed, a paternal aunt
even lives across the street—they are not close to those family members and
rarely, if ever, interact with them.
[9] The children are doing well in their current school in Indiana, but school
professionals testified that they have no concerns about the children’s respective
abilities to transition to a new school environment. The school district in which
Mother’s parents live is a well-regarded district with good schools; indeed,
Mother and her sister both attended those schools themselves. The children
would attend school with their cousins.
[10] Mother and Father have an extremely contentious relationship that both have
played a role in over the years. They have difficulty communicating in a
respectful way and primarily do so over text messages. But Mother emphasizes
that if she moves, she would continue to encourage the children to maintain a
relationship with Father. Specifically, Mother proposes the following
accommodations in the event of the children’s relocation:
• Father would get ten weeks, instead of seven, with the children during summer breaks. • If Father’s spring break did not align with the children’s, he would get an additional week during the summer as compensation. • Father would get one full week at Christmas time. • The children and Father would have daily contact via phone or Facetime. • Mother would help Father with the cost of plane tickets.
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 5 of 15 • Mother would abate Father’s child support obligation.
Tr. Vol. II p. 83-86.
[11] On January 9, 2017, the trial court entered an order permitting the relocation of
the children to California. Among other things, it found as follows:
4. [Mother]’s desire is motivated by a number of factors, including:
i) to reside with her folks . . . ;
ii) to assist her elderly parents in maintaining their residence and independence;
iii) live-in free child care;
iv) expanded job opportunities;
v) other relatives that live nearby; and,
vi) to use proceeds from sale of her house in Indiana to reimburse her parents’ financial contributions.
***
7. [Mother] has aptly demonstrated that her proposed relocation is made in good faith and for legitimate purposes. . . . [Mother]’s desire to be near a majority of her family, to support her elderly parents, and to bolster her financial opportunities are rational motivations in the context of this family.
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 6 of 15 ***
9. . . . As a result of the distance and his work schedule . . . , [Father] relies significantly on e-mail and telephonic communication to maintain regular contact with the children. In addition, he has opted to forgo his Sunday overnights based upon his relocation.
10. . . . [Mother] . . . intends to live with her parents, and has extended family support within that area. [Mother] has no family in Indiana. While [Father]has family in Indiana they are not close and do not regularly interact with the children.
12. [Mother] has historically been the primary care giver for the children and has regularly attended to their mental and physical healthcare, as well as educational needs. Further, [Mother] has researched the children’s educational options and circumstances upon relocation, and has a defined transition plan.
13. Ultimately, [Father] has failed to establish that the relocation is not in the children’s best interest.
Appealed Order p. 1-3.
[12] On January 24, 2017, Father filed a motion to stay the trial court’s order
pending appeal. On January 30, 2017, the trial court denied the motion to stay,
observing that the trial court had been “notified by [Mother] that she has begun
implementing the relocation and has already enrolled the children in school in
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 7 of 15 the State of California and they are attending classes at this time. . . . [The]
Court does not find it to be in the children’s best interest to interrupt their
current educational activities awaiting resolution of the Appellate process.”
Appellant’s App. p. 13. Father now appeals.
Discussion and Decision [13] Father appeals the trial court’s order permitting Mother to relocate with the
children. In reaching its decision, the trial court entered findings and
conclusions, our review of which 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 issue 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.
Miller v. Carpenter, 965 N.E.2d 104, 108-09 (Ind. Ct. App. 2012) (internal
citation and some internal quotation marks omitted).
[14] Our Supreme Court has “expressed a preference for granting latitude and
deference to our trial judges in family law matters . . . because of trial judges’
unique, direct interactions with the parties face-to-face.” T.L. v. J.L., 950
N.E.2d 779, 784 (Ind. Ct. App. 2011) (internal citations and quotation marks
omitted). Consequently, we do not substitute our judgment for that of the trial
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 8 of 15 court if evidence and legitimate inferences therefrom support the trial court’s
judgment; this serves the interests of finality in custody matters. Baxendale v.
Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008).
[15] If a parent intends to relocate, she must file a notice of her intent to move with
the court that issued the custody or parenting time order already in place. Ind.
Code § 31-17-2.2-1(a). In response, the non-relocating parent may file a motion
seeking a temporary or permanent order to prevent the relocation of the child.
I.C. § 31-17-2.2-5. When such a motion is filed, a statutory burden-shifting
analysis must be undertaken by the trial court:
(c) The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason.
(d) If the relocating individual meets the burden of proof under subsection (c), the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.
Id.
[16] There are a number of statutory factors that must be considered by the trial
court that are set forth in Indiana Code section 31-17-2.2-1(b), but those factors
apply only when the trial court must determine whether to modify a custody,
parenting time, grandparent visitation, or child support order. Here, no such
modifications are at issue; as such, we need not consider the factors set forth in
that statute. Instead, we must simply determine whether the trial court properly
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 9 of 15 determined that Mother met her burden of proving that the relocation is made
in good faith and for a legitimate reason and, if so, that Father failed to meet his
burden of proof that the proposed relocation is not in the children’s best
interests.
[17] There is no real dispute as to whether Mother proposed the relocation in good
faith. At no point does Father assert or imply that she had underhanded
motives or unspoken reasons for the move, and indeed, the record would not
support such an allegation. We find no evidence causing us to question the trial
court’s finding that the proposed relocation is being made in good faith.
[18] Father focuses, instead, on whether the trial court erroneously determined that
Mother had a legitimate reason for the relocation. The trial court found that
Mother had multiple reasons to seek the relocation, and each of these findings
has support in the record.
1. Mother wishes to live with her parents. See Tr. Vol. II p. 46, 70. 2. Mother wishes to provide assistance to her parents in maintaining their residence and independence. See id. at 46-47, 72, 155. 3. Mother wishes to take advantage of free live-in child care. See id. at 47. 4. Mother hopes to take advantage of expanded job opportunities. See id. at 49-50, 68, 70-71, 73. 5. Mother wishes, both for herself and for the children, to live near her extended family. See id. at 46-47. 6. Mother hopes to use proceeds from the sale of her home in Indiana to repay her parents. See id. at 69-70.
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 10 of 15 As there is evidence supporting each of these findings in the record, we must
simply determine whether these findings support the trial court’s conclusion
that Mother had one or more legitimate reasons for the relocation.
[19] Mother’s reasons for moving can be separated into two basic categories:
flexibility and finances; and family. With respect to flexibility and finances, it is
undisputed that in Indiana, Mother has no family support and has been the
children’s primary caregiver with little to no help with childcare, extracurricular
activities, and the day-to-day job of raising happy, healthy children. As a result,
she has had to take jobs for which she is overqualified and underpaid, so that
she retains the flexibility she needs as primary caregiver. Unless a desirable job
becomes available at a distance from her parents, Mother and the children plan
to move in with them. In such a scenario, Mother would have live-in, free
childcare. Furthermore, Mother’s parents, as well as her sister and her family,
would be available as support if something unexpected, such as a child illness,
came up. With this support, Mother will be free to look for jobs that may offer
less flexibility but higher income.
[20] With respect to family, Mother’s parents are aging. And while they are
currently able to live independently and maintain their house and lawn, they
will soon reach a point when they will need more help. Currently, Mother’s
sister—who has five children of her own—bears the sole responsibility for
providing help to their parents. Mother’s presence in California would help
both her parents and her sister during the years when it will be most welcome.
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 11 of 15 Additionally, the children would benefit from proximity to an extended family
that is undisputedly close, supportive, and loving.
[21] We find that the record supports the trial court’s conclusion that these reasons,
taken as a whole, are legitimate reasons for the proposed relocation. See Gold v.
Weather, 14 N.E.3d 836, 842-43 (affirming trial court’s conclusion that Mother’s
relocation, which occurred so she could be closer to her immediate and
extended family, was done for a legitimate purpose). We acknowledge Father’s
arguments that Mother does not yet have a job, that she cannot prove
definitively that her income will increase upon relocation, and that her parents
do not yet need assistance. Notwithstanding all of these unknowns, however,
what is known is that in Indiana, Mother is parenting the children with no
support; in California, she would have extensive family support, including free
child care; in California, she would be able to help with the inevitable decline of
her aging parents; and in California, her children would have a large and
supportive family nearby, including cousins their own ages. We find that the
trial court did not err by finding that these are legitimate, good faith reasons for
the proposed relocation.
[22] As such, the burden shifts to Father to prove that the relocation would not be in
the children’s best interests. The trial court found that Father opposed the
relocation for a number of reasons:
i) he fears it will impair his relationship with the children;
ii) he is without the financial means to travel to California;
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 12 of 15 iii) the children will be denied close contact with he and his family; and,
iv) [Mother] seeks to impede his relationship with the children.
Appealed Order p. 2. The understandable crux of all these reasons for Father’s
opposition is a concern that the relocation will hamper his ability to maintain a
close relationship with the children. That is a fair and worthy concern, and is
often an unfortunate side effect of a parental relocation.
[23] Even while the children are living in Indiana, however, Father’s distance from
their home has caused him to be unable to be a daily presence in their lives, at
their school, and at their extracurricular activities. We intend to cast no
aspersions on his decision to move for reasons of employment, but one result of
that move—even if the move was the right thing to do—was a lessening of his
presence in their lives. The children are used to having much of their contact
with Father in their nightly phone calls, and that will continue after they move
to California. And while they will lose their weekly hours with him on
Thursdays and bimonthly weekends with him, the children will be able to spend
ten weeks with him during the summer, as well as time during spring and
winter breaks from school. Indeed, the amount of parenting time he has with
the children will remain the same—it will just occur in large, discrete blocks of
time rather than smaller blocks on a regular basis. Of course this is not ideal,
but that does not mean that the move is not in their best interests.
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 13 of 15 [24] Mother has promised to help with the cost of plane tickets and to abate Father’s
child support obligation, which will ease any financial strain on Father. She
has offered more summer parenting time to him than he would otherwise be
entitled, and has promised daily phone or Facetime contact with the children.
Mother and Father have a contentious relationship, and we acknowledge, as
did the trial court, that at times she has impeded his relationship with the
children. But there is no evidence of any such impediment since the trial court
entered an order in a 2013 contempt proceeding. And we note, as did the trial
court, that it is readily apparent from the record in this case that the
contentiousness in the relationship, as well as the parties’ difficulties with
communication, has been a two-way street for which both parents must share
blame. That said, of course if Mother fails to comply with the terms of the trial
court’s orders in the future, Father would again be free to file contempt
proceedings. But at this time, there is no evidence supporting Father’s concern
that Mother will impede his relationship with the children upon relocation.
[25] As noted above, the relocation will offer the children a close and supportive
extended family network. They will attend good schools with their cousins.
They will be cared for by grandparents and their aunt and uncle, as well as the
continued care provided by Mother. They will lose regular in-person contact
with their Father, but will still be able to maintain a relationship with him over
the phone every day and in person during school breaks. Given this record, we
do not find that the trial court erred by concluding that Father did not meet his
burden of proving that the relocation would not be in the children’s best
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 14 of 15 interests. Father’s arguments to the contrary amount to a request that we
reweigh evidence and reassess witness credibility, which our standard of review
does not permit.
[26] The judgment of the trial court is affirmed.
Barnes, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 15 of 15