In Re Paternity of JJ

911 N.E.2d 725, 2009 WL 2601507
CourtIndiana Court of Appeals
DecidedAugust 25, 2009
Docket08A02-0903-JV-280
StatusPublished

This text of 911 N.E.2d 725 (In Re Paternity of JJ) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Paternity of JJ, 911 N.E.2d 725, 2009 WL 2601507 (Ind. Ct. App. 2009).

Opinion

911 N.E.2d 725 (2009)

In the Matter of the PATERNITY OF J.J., A Child Born Out of Wedlock by Next Friend, Garnet E.S., Appellant-Petitioner,
v.
Wess A. J., Appellee-Respondent.

No. 08A02-0903-JV-280.

Court of Appeals of Indiana.

August 25, 2009.

*726 Florence Anne Briggs, Briggs Law Office, Flora, IN, Attorney for Appellant.

OPINION

MATHIAS, Judge.

Garnet S. ("Mother") appeals the Carroll Superior Court's modification of physical custody of her minor child to Wess J. ("Father"). She raises two issues, but we address only the following dispositive issue:[1] whether the trial court abused its discretion when it modified custody because of Mother's relocation without considering all of the factors as required under Indiana Code section 31-17-2.2-1(b). Concluding that the trial court was required to hear evidence on and consider all of the factors enumerated in section 31-17-2.2-1(b), we remand for proceedings consistent with this opinion.

Facts and Procedural History

J.J. was born on October 16, 2005. On February 12, 2007, Father's paternity to J.J. was established and Father was awarded visitation consistent with the Indiana Parenting Time Guidelines. Father was also ordered to pay $55.11 per week in child support.

On January 6, 2009, Mother filed a notice of intent to relocate J.J. to Florida due to her husband's naval service. On February 9, 2009, Father sent a letter to the trial court, which the court considered to be a petition for modification of custody, child support, and visitation. Appellant's App. pp. 17-19.

At the custody hearing held on March 10, 2009, neither party was represented by counsel. Father testified that he is J.J.'s primary caretaker. Father also presented evidence that from February of 2007 to December 31, 2007, he had J.J. for 271 days, in 2008 he had J.J. for 274 days, and *727 from January 1 to February 9, 2009, he had J.J. for 32 days. Tr. p. 3. Father stated that he provided clothes, diapers, and other necessities for J.J. Id. at 6. However, Father admitted that he did not pay his court-ordered child support. Mother stated that Father watched J.J. because she worked two jobs and Father was unemployed. She testified, "I give him first chance since he was not working if he wanted to watch her so I could work and not have to take her to a babysitter." Id. at 9.

On March 15, 2009, the trial court entered the following order modifying custody:

... On February 12, 2007, the mother was granted custody of [J.J.] and the father was granted parenting time in accordance with the parenting time guidelines. [Mother] will be relocating to Georgia as a result of a change in the assignment of her husband by the military to a base in Florida. Consideration of proposed relocation of a child is a factor in determining whether to modify custody. [Citation omitted].
The father has had [J.J.] for parenting time on all or part of 271 days in 2007, 274 days in 2008, and on 32 days from January 1 to February 11, 2009. [J.J.] has stayed in the home of her father more than one-half of the overnights. If [J.J.] were to relocate to Georgia with her mother, it would result in a significant change in her relationship with her father. Given that the father has been the "defacto custodial parent," it would be the same as a change of custody. "One of the most significant elements of stability in a child's life is the child's primary caretaker—the person who cooks his meals, puts him to bed, and cares for him on a daily basis." [Citation omitted]. During the past two years, the primary caretaker has been her father.
[J.J.] has a close relationship with her grandparents, two sisters and a brother, aunts, and cousins from both sides of her family who reside in Indiana. A move with her mother to Georgia would also have a significant impact upon [her] relationship with those other than her parents who are closest to her.
The court finds, based upon the substantial changes that will result in the relocation of the child to Georgia set forth above that it is in the best interest of [J.J.] for custody to be modified.

Appellant's App. p. 5. The trial court modified custody by awarding joint custody to Mother and Father, with Father having primary physical custody and Mother having parenting time in accordance with the parenting time guidelines. Mother now appeals. Additional facts will be provided as necessary.

Standard of Review

Initially, we observe that Father failed to file an appellee's brief. We will not undertake the burden of developing arguments for the appellee. Painter v. Painter, 773 N.E.2d 281, 282 (Ind.Ct.App.2002). Applying a less stringent standard of review, we may reverse the trial court if the appellant establishes prima facie error. Id. Prima facie error is defined as at first sight, on first appearance, or on the face of it. Id.

Moreover, we review custody modifications for an abuse of discretion. Apter v. Ross, 781 N.E.2d 744, 757 (Ind.Ct. App.2003), trans. denied. We will not reweigh the evidence or judge the credibility of the witnesses. Rather, we consider only the evidence most favorable to the judgment and any reasonable inferences from *728 that evidence. Leisure v. Wheeler, 828 N.E.2d 409, 414 (Ind.Ct.App.2005).

Discussion and Decision

First, we observe that 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) (citation omitted).

Custody modifications are generally governed by Indiana Code section 31-17-2-21 (2008), which provides that a custody modification is permitted only if the modification is in the best interests of the child and there has been a substantial change in one or more of the factors identified in Indiana Code section 31-17-2-8 (2008).

In 2006, our General Assembly added to the Family Law Title of the Indiana Code an entire chapter concerning the relocation of a custodial parent. See Ind.Code ch. 31-17-2.2 (2008). This new chapter was recently summarized by our Supreme Court in Baxendale v. Raich, 878 N.E.2d 1252 (Ind.2008):

"Relocation" is "a change in the primary residence of an individual for a period of at least sixty (60) days," and no longer requires a move of 100 miles or out of state. Id. § 31-9-2-107.7. A "relocating individual" is someone who "has or is seeking: (1) custody of a child; or (2) parenting time with a child; and intends to move the individual's principal residence." Id.

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Related

Baxendale v. Raich
878 N.E.2d 1252 (Indiana Supreme Court, 2008)
Kirk v. Kirk
770 N.E.2d 304 (Indiana Supreme Court, 2002)
Apter v. Ross
781 N.E.2d 744 (Indiana Court of Appeals, 2003)
Leisure v. Wheeler
828 N.E.2d 409 (Indiana Court of Appeals, 2005)
In Re the Marriage of Richardson
622 N.E.2d 178 (Indiana Supreme Court, 1993)
Painter v. Painter
773 N.E.2d 281 (Indiana Court of Appeals, 2002)
Wolljung v. Sidell
891 N.E.2d 1109 (Indiana Court of Appeals, 2008)
Paternity of J.J. ex rel. E.S. v. A. J.
911 N.E.2d 725 (Indiana Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
911 N.E.2d 725, 2009 WL 2601507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-paternity-of-jj-indctapp-2009.