In Re The Paternity of K.R.K. K.O. v. R.H.K. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 3, 2015
• Docket: 02A03-1408-JP-274
• Status: Published

Opinion

MEMORANDUM DECISION Jun 03 2015, 10:45 am 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 of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E. James James C. Yankosky Don James & Associates, LLC Angelica N. Fuelling Fort Wayne, Indiana Tourkow, Crell, Rosenblatt, & Johnston, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re The Paternity of K.R.K. June 3, 2015 Court of Appeals Case No. K.O. 02A03-1408-JP-274 Appeal from the Allen Superior Appellant-Defendant, Court v. The Honorable Daniel G. Heath, Judge R.H.K., Cause No. 02D07-1001-JP-8 Appellee-Plaintiff

Friedlander, Judge.

[1] K.O. (Mother) appeals from the denial of her petition to relocate, presenting the

following consolidated, restated issue on appeal: Did the trial court commit

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 1 of 10 clear error in finding that relocation of K.R.K. (Child) was not in Child’s best

interest?

[2] We affirm.

[3] Mother and R.K. (Father) are the biological parents of Child, who was born in

2008. Father’s paternity was established in Allen Superior Court on April 8,

2010. Mother also has a daughter who is approximately two years older than

Child. Father believed that he was the biological father of the older child until

paternity tests in 2010 proved otherwise. After tests confirmed that Father was

the biological parent of Child, Father was granted parenting time pursuant to

the Indiana Parenting Time Guidelines (the Guidelines). Father exercised

parenting time with Child every other weekend and on Wednesday evenings.

In addition, Father exercised parenting time with Child half of each summer,

on alternating spring breaks, and on alternating holidays.

[4] Mother and Timothy Oxendine met in the summer of 2012. Although

Oxendine had been a resident of Fort Wayne since 1989, his extended family

lived in Calvin, Kentucky. On October 14, 2012, Oxendine suffered a heart

attack. He was advised in March 2013 that he would need a defibrillator to

improve his heart rate and rhythm. On May 31, 2013, Mother and Oxendine

married. On August 21, 2013, Mother filed a notice of her intent to relocate

with Child from Ossian, Indiana to Calvin, Kentucky. At the time, all of

Child’s biological family lived within a sixty-mile radius of Ossian. In the

notice, Mother asserted that she wanted to relocate for the following reasons:

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 2 of 10 [M]y husband and myself are disabled and will not be returning to work. We would like to relocate to be closer to grandparents. We will be moving into the holler, where it is quiet and away from the city. We want to be out of the city, out of our trailer, and away from Fort Wayne. It seems as though the gangs, drugs, shootings, and homicides are getting worse and out of control. I don’t want my children raised around that. I also don’t want them to be afraid to leave the house. I want them to be able to go outside and play and [sic] their own front yard. Appellant’s Appendix at 82.

[5] On December 20, 2013, Mother filed a “letter in addendum”, providing further

rationale for relocation. Id. at 83. Referring to the original notice, she

apologized for making “it sound as though Fort Wayne, IN was an awful place

to live.” Id. She then expanded upon the reasons for relocating, including: 1)

they would be closer to Mother’s mother1 and Oxendine’s father, with whom

Child shared close relationships; 2) the family would benefit financially because

they would pay no rent or house payment as a result of the fact that the home

into which they would move was owned by Oxendine’s extended family; 3)

Child would be involved in the church in which his step-father was raised; and

4) Child would benefit by not being separated from his half-sister and step-

father, with whom he shared close relationships.

[6] Oxendine’s employer-provided health insurance in Indiana would not cover the

cost of the procedure to implant a defibrillator. Also, according to Oxendine,

1 Mother’s mother planned to relocate to Kentucky when Mother did.

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 3 of 10 he was not eligible for Medicaid in Indiana. Oxendine learned, however, that if

he were a resident of Kentucky, he would be eligible for “Kentucky Medicaid”.

Transcript at 60. He traveled to Kentucky on December 21, 2013, for the

purpose of having a defibrillator implanted. On December 22, 2013, before a

defibrillator was implanted, Oxendine suffered a second heart attack. At the

time of the final hearing in this matter, Oxendine received $1474 per month in

Social Security Disability (SSD) benefits. In addition, he was told by a Social

Security office in Kentucky that each child living with him in Kentucky would

receive a $386 monthly SSD benefit. In addition to Child and Child’s half-

sister, Oxendine had two of his biological children living with him. At the time

of the final hearing, Oxendine had not yet received a defibrillator.

[7] Father opposed the motion to relocate, and, in addition, filed a motion for

change of custody. A hearing was conducted on February 21, 2014, and

continued to February 26, 2014. It was at this hearing that Mother indicated

for the first time that one reason for the relocation was to enable Oxendine to

qualify for medical benefits that were ostensibly unavailable to him in Indiana.

Following the hearing, the trial court entered impressively thorough findings of

fact and conclusions of law. After finding that Mother had met her burden of

proof by a preponderance of the evidence to demonstrate that the request for

relocation was made in good faith and for legitimate reasons, the court

nonetheless determined that relocation was not in the best interest of Child,

entering the following Conclusions of Law in support of its ruling:

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 4 of 10 6. Although the transportation expense would create some hardship for [Mother], the transportation drive time could create some hardship for [Father]. On the other hand, the same would be true if [Father] were granted custody of [Child]. 7. [Mother’s] “best interest” evidence and arguments focused on [Child’s] family – and not [Child] specifically. However, [Father’s] “best interest” evidence and arguments regarding county poverty and high school comparisons were of limited value. 8. The Court weighs heavily that [Father] has been a father involved in every facet of [Child’s] life and [Father] has exercised his opportunities for parenting time pursuant to the Indiana Parenting Time Guidelines (without distance as a major factor), except for National Guard service, and has provided regular financial support for [Child]. 9. Imposing the Indiana Parenting Time Guidelines (with distance as a major factor) would curtail approximately thirty-five (35) standard overnight parenting time periods plus any additional parenting time as agreed by the parties between [Father] and [Child]. 10. Given the totality of circumstances in this case, the Court could not find that diminishing [Father’s] parenting time with [Child] was in [Child’s] best interest. Appellant’s Appendix at 29. The trial court also denied Father’s petition for

change of custody. Mother appeals the denial of her petition to relocate.

[8] Where the trial court enters special findings of fact and conclusions pursuant to

Trial Rule 52(A), we apply a two-tiered standard of review. In re Paternity of

C.S., 964 N.E.2d 879 (Ind. Ct. App. 2012), trans. denied. First, we consider

whether the evidence supports the findings, and second, whether the findings

support the judgment. Id. The trial court’s findings and conclusions will be set

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 5 of 10 aside only if they are clearly erroneous—that is, where a review of the record

leaves us with a firm conviction that a mistake has been made. In re Paternity of

D.T., 6 N.E.3d 471 (Ind. Ct. App. 2014). In conducting our review, we will

neither reweigh the evidence nor judge the credibility of witnesses. Id. In

addition, we will consider only the evidence favorable to the trial court’s

judgment. Id.

[9] When a parent files a notice of intent to relocate, the nonrelocating parent may

object by moving to modify custody or to prevent the child’s relocation. Ind.

Code Ann. § 31–17–2.2–1 (West, Westlaw current with legislation of the 2015

First Regular Session of the 119th General Assembly effective through April 23,

2015); I.C. § 31–17–2.2–5 (West, Westlaw current with legislation of the 2015

First Regular Session of the 119th General Assembly effective through April 23,

2015). Father did both. Where the nonrelocating parent files a motion to

prevent relocation, the relocating parent must first prove “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 makes such a showing, “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).

[10] The trial court found that Mother had satisfied her burden of proving that her

request for relocation was made in good faith and for a legitimate purpose;

Father does not challenge that finding. Mother contests the trial court’s

subsequent determination that Father satisfied his burden of establishing that

the proposed relocation was not in Child’s best interest.

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 6 of 10 [11] In considering a proposed relocation, a trial court must weigh several factors,

including the distance involved in the proposed relocation, the hardship and

expense involved for the nonrelocating individual to exercise parenting time or

grandparent visitation, “[t]he 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”, and “[o]ther factors affecting the best interest of

the child.” I.C. § 31–17–2.2–1(b)(1), (2), (3) and (6), respectively; see also D.C. v.

J.A.C., 977 N.E.2d 951 (Ind. 2012). “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.”

T.L. v. J.L., 950 N.E.2d 779, 785 (Ind. Ct. App. 2011) (alteration in original).

I.C. § 31–17–2–8 (West, Westlaw current with legislation of the 2015 First

Regular Session of the 119th General Assembly effective through April 23,

2015) provides that the court “shall consider all relevant factors,” including,

among others, the child’s age and sex, the child’s parents’ wishes, the child’s

wishes (with more consideration given to the wishes of a child who is at least

fourteen years of age), the child’s interaction and interrelationship with his or

her parents, siblings, and any other persons who may significantly affect the

child’s best interests, and the child’s adjustment to home, school and

community.

[12] In finding that relocation was not in Child’s best interest, the trial court found

that, except when he was deployed in the National Guard 2011, Father has

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 7 of 10 been “involved in every facet of Child’s life.” Appellant’s Appendix at 29. Father

exercises his mid-week parenting time unless his work duties interfere, and also

exercises his alternate holidays and one-half summer parenting time. The court

found that Father’s parenting time would be curtailed by Mother’s relocation

with Child to an area approximately 378 miles away. From that distance,

Father would not be able to monitor Child’s school activities except by

computer and phone. Moreover, Father would not be able to participate in

person in Child’s sports activities during the school year, although he would be

able to participate in Child’s summer sports activities. The trial court also

found that Child has close and loving relationships with both sides of his

extended family, including Father’s, and his contact with Father’s extended

family would be significantly reduced if Child relocated to Kentucky. These

findings are supported by the evidence and thus not clearly erroneous. Based

largely upon these findings, the trial court found that relocation was not in

Child’s best interest.

[13] Mother’s arguments on appeal center upon the benefits of relocation to her

household, of which Child obviously is currently a member. For instance, she

notes that the medical treatment that Oxendine needs, which costs $160,000-

$185,000, is covered by insurance if he is a Kentucky resident, but is not

covered if he lives in Indiana. She notes also that the family can live rent-free in

Kentucky in a house, which would not be the case were they to remain in

Indiana, where they live in a mobile home. Mother also points out that the

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 8 of 10 family’s combined monthly income, including dependent care SSD income,

would be approximately twenty-five percent higher in Kentucky than Indiana.

[14] We are not inclined to dispute Mother’s claim that her family, and by extension

Child, would benefit in certain ways if she was permitted to relocate Child to

Kentucky. We cannot, however, reverse a trial court’s determination

concerning a relocation petition merely because the evidence might support a

different determination. Instead, the evidence “must positively require” the

result sought by the appellant. D.C. v. J.A.C., 977 N.E.2d at 957. As our

Supreme Court has explained, appellate deference to trial court judges is

especially appropriate in domestic relations matters because of their “unique,

direct interactions with the parties face-to-face, often over an extended period of

time.” Id. at 956 (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)).

[15] So it is here. There is evidence to support the trial court’s findings relative to

the negative impact that relocation to Kentucky would have with respect to

Child’s contact and interaction with Father and Father’s extended family.

Mother’s arguments on appeal essentially are that these negatives are

outweighed by the aforementioned benefits of relocation to Child and Mother’s

family. This is tantamount to a request that we reweigh the evidence and reach

a conclusion opposite to the trial court’s. Our Supreme Court made it clear in

D.C. v. J.A.C. that we cannot do this. Because there is evidence supporting the

trial court’s finding that the requested relocation is not in Child’s best interests,

we will not disturb its judgment on appeal.

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 9 of 10 [16] Judgment affirmed.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JP-274| June 3, 2015 Page 10 of 10