MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this May 12 2015, 10:34 am 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Trisha S. Dudlo David A. Guerrettaz Kelly A. Lonnberg Molly E. Briles Bamberger, Foreman, Oswald and Mary Lee Schiff Hahn, LLP Ziemer Stayman Weitzel & Evansville, Indiana Shoulders, LLP Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Marriage of May 12, 2015 Court of Appeals Case No. Christina Estes (Sapp), 87A05-1408-DR-384 Appellant-Respondent, Appeal from the Warrick Circuit Court v. The Honorable David O. Kelley, Judge Shaun Allen Sapp, Cause No. 87C01-1302-DR-269 Appellee-Petitioner.
Kirsch, Judge.
[1] In this post-dissolution matter, Christina Estes (“Mother”) sought to relocate
with the parties’ minor child, K.S. Shaun Allen Sapp (“Father”) filed a motion
to modify custody and prevent the relocation. After a two-day evidentiary
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 1 of 28 hearing, the trial court ruled in Father’s favor. Mother appeals, raising the
following restated and consolidated issues:
I. Whether the trial court erred in excluding certain counseling records that Mother tendered at the hearing; II. Whether the trial court’s findings of fact and conclusions, denying Mother’s request to relocate with K.S. and granting Father’s petition to modify custody, were clearly erroneous; and III. Whether the trial court abused its discretion when it calculated child support. [2] We affirm.
Facts and Procedural History [3] Mother and Father married in 2003. K.S. (“Child”), born in 2004, is their only
child. Mother and Father separated in or around the fall of 2012, and on May
8, 2013, their marriage was dissolved pursuant to a decree of dissolution and
settlement agreement. Under the terms of the settlement agreement, the parties
shared joint legal custody of Child, and Mother was awarded primary physical
custody of her, with Father having visitation “Thursday and Friday overnight
and every other weekend.” Appellant’s App. at A048. Father agreed to pay child
support to Mother in the amount of $288.46 per week.
[4] When Child was approximately four years old, the parties moved into a home
(“family residence”) in Newburgh, Indiana, near Evansville, and, for the most
part, Child has lived in the family residence continuously since that time, living
with one parent or the other at that location after the separation and
dissolution. Child has friends in the neighborhood, some of whom have spent
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 2 of 28 the night at the family residence. Child excels academically at her school and is
involved with extra-curricular activities, such as basketball associated with her
school and tumbling classes in Newburgh. Child’s extended family, on both
Mother’s and Father’s side of the family, live in the Newburgh and southern
Indiana area, and Child spends time with these relatives on birthdays, holidays,
and other occasions. Child’s maternal grandmother, Marilyn O’Neal
(“O’Neal”), lives in Evansville. O’Neal and Child enjoy a close and bonded
relationship and see each other frequently. O’Neal retired at age fifty-five to be
available to take care of Child as needed, and, generally, she has been Child’s
primary caretaker on those occasions when Mother and Father are not
available.
[5] Father works in Evansville and is an independent contractor with FedEx
Ground. He owns two companies, S.C. Sapp, Inc. and Sapp, Inc., and a
limited liability company, Sapp Diesel, LLC. The two corporations own and
operate twenty-three FedEx trucks and nineteen routes, employing more than
twenty individuals as staff, mechanics, and drivers; the limited liability
company is a real estate holding company and does not generate income. As a
business owner, Father has flexibility in managing his work schedule.
Generally, he works from 6:30 or 7:00 a.m. to 10:30 a.m. each day at the FedEx
terminal and then is on call, in order to handle issues that may arise with
having employees and trucks making deliveries. In addition to working at the
terminal, Father works six to eight hours per week from his home office on
bookkeeping matters. In March 2011, Mother began working as an
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 3 of 28 independent contractor for State Farm Insurance Company, owning and
operating her own agency in Henderson, Kentucky.1 By all accounts, Mother
enjoyed remarkable success in this position and was awarded national honors
and awards for her achievements as an agent. Under the terms of the
settlement agreement, Father received sole ownership of his three businesses,
and Mother received sole ownership of her insurance agency business.
[6] Because of Mother’s work schedule, and by agreement of the parties, Father
spent additional parenting time with Child beyond that outlined in the
settlement agreement. In or around January 2013, prior to the divorce being
final in May 2013, Father moved out of the family residence and into a home
that he rented from a family friend, Daniel Chancellor (“Chancellor”). On
most school days, Father would meet Child as she got off the school bus, and
he would keep her at his residence until Mother got home from work about
6:00 p.m. If it was Mother’s overnight, she would pick up Child from Father;
otherwise, Child would stay overnight with Father. During the summer
months, O’Neal would watch Child during the daytime hours, and Father
would pick her up between 3:00 and 4:00 p.m. to be with him until Mother
picked up Child around 6:00 p.m.
[7] In July 2013, Mother married Garrett Estes (“Garrett”). Garrett owns and
operates two State Farm insurance agencies in the Cleveland, Ohio area.
1 Prior to beginning as an agent with State Farm, Mother worked for McDonald’s as a General Manager of a location, starting with McDonald’s at age sixteen and working her way up to the management position.
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 4 of 28 Garrett has one son, H., who is the same age as Child. Child has a good
relationship with both Garrett and H. Father has not remarried, but has been in
a continuous relationship with Lauren Plunkett (“Lauren”) since prior to the
dissolution. Lauren has two minor sons, J. and L., who are a little younger
than Child. Lauren and her sons live with Father in the family residence.
Child has a good relationship with Lauren and her sons.
[8] Between July and September 2013, Mother began communicating with her
State Farm Sales Leader Tommy Rowland (“Rowland”), who served as a
liaison between individual agents and the State Farm corporate body, about the
possibility of moving from her agency in Henderson, Kentucky to an agency in
northern Ohio. State Farm’s term for the relocation process is “migration.” See
Appellant’s App. at A080. Mother first conversed with Rowland by phone, and,
at some point in the fall of 2013, she submitted an email request to Rowland
formally indicating her desire to migrate. The migration process works as
follows: An agent submits a request to migrate, and State Farm determines if
there is an agency open in the agent’s requested geographic region, whether due
to an existing agent’s retirement or the opening of a new agency. If there is
more than one agency available, State Farm presents one of the openings to the
agent, and he or she must accept or reject the offer. The agent cannot say,
“‘Well, that one is too small’ or ‘I don’t like the location of it.’ You either take
it or you don’t[.]” Id. at A102. If the agent accepts, he or she must move to the
new agency location. If he or she rejects it, the migration process ends as to the
pending request to migrate. An agent may, however, subsequently submit
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 5 of 28 migration request to begin the process again. Mother learned in September or
October 2013 about a State Farm agency in North Ridgeville, Ohio, located just
outside of Cleveland, which was becoming available due to the agent’s
retirement.
[9] In November 2013, Mother filed with the trial court a Notice of Intent to
Relocate Residence, stating, in part:
5. The moving parent’s move is expected to take place on or about December 31, 2013. The Mother has remarried and her current husband’s job and her job are now located near Avon, Ohio. 6. The relocation is being made for financial, budgetary, and economic reasons, and is in the best interest of the party’s minor children, and is being made due to the legitimate needs of the parties. Id. at A002. In December 2013, Mother moved her possessions out of the
family residence and for the most part moved into Garrett’s home in Ohio, and
Father moved back into the family residence. For those times that Mother was
in Indiana after she moved out of the family residence, she stayed at her
mother’s home in Evansville. On December 30, 2013, Father filed a petition to
modify custody of Child, stating that Mother’s proposal to relocate with Child
to Avon, which is near Cleveland and is approximately 450 miles from
Newburgh, Indiana, was not in Child’s best interest.
[10] Although Mother was residing, at least in part, in Ohio, she continued to
operate her Henderson, Kentucky agency until mid-2014. In May 2014, she
signed a contract to assume ownership and operation of an existing State Farm
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 6 of 28 agency in North Ridgeville, Ohio; Mother ceased to operate the Henderson,
Kentucky office on June 1, 2014.
[11] A few weeks later, on June 26 and 30, 2014, the trial court held a hearing on
pending matters, namely Mother’s request to relocate and Father’s request for
change of custody. At the hearing, Mother and Father testified, along with:
Rowland; O’Neal; Roy Sapp, the paternal grandfather; and Tina Sapp, Father’s
sister. The trial court also heard testimony from Chancellor, whose home
Father rented for a year, Karen Gingerich, who cleaned house for both Mother
and Father for a number of years, and Lisa Provost (“Provost”), a licensed
counselor located in Evansville, who saw Child on six occasions, following
reports received by Father and Mother from school related to isolated and
minor behavioral issues.
[12] Prior to the start of testimony, Mother advised the court that she intended to
introduce certified medical records reflecting counseling sessions in which
Father was involved, some joint marital sessions and other individual sessions,
for the purpose of showing admissions Father made during those sessions. The
trial court sustained Father’s objection, observing that the records predated the
parties’ dissolution and, further, that Father had a right to cross-examine the
individuals who made the entries in the records. Tr. Vol. 1 at 7-9. Later, during
Father’s testimony, Mother again sought to introduce certain of the records,
which the trial court again excluded on the basis of hearsay. Id. at 175, 178.
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 7 of 28 [13] During the hearing, Father explained that since he moved back into the family
residence in December 2013, Mother spent most of her free time in Ohio with
her husband, and to exercise her parenting time, sometimes Mother would fly
Child back and forth between Indiana and Ohio, occasionally requiring Child
to fly alone and connect flights through Detroit. The travel time to fly was
approximately three hours, and to drive was approximately six and a half to
seven hours. Father testified that, while Child remained a happy and well-
adjusted Child after the dissolution, and that she continued to do well in school,
the travel time impacted her ability to participate in weekend activities, such as
basketball and tumbling. Mother testified that her current residence, as of June
1, 2014, was in Avon, Ohio with Garrett and his son. Mother testified that
while she moved out of the family residence in December 2013, she resided
during the week at her mother’s home, in Evansville, Indiana, and did not
officially move to Avon until June 1. Before Mother’s move to Ohio, she and
Father both utilized maternal grandmother, O’Neal, to provide summer
childcare for Child. After moving to Ohio, Mother hired a college student in
the area to provide summer childcare for Child2 and Garrett’s son. Mother
testified that because she and Garrett both had flexible work schedules, she did
not anticipate regularly needing before-school or after-school care for Child in
Ohio.
2 The hearing occurred in June 2014; for that summer, Child spent a portion of her summer break with Mother in Ohio and the remainder with Father in Indiana.
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 8 of 28 [14] With regard to Mother’s relocation to Ohio, Father testified that, since in or
around October 2012 when Mother met and began dating Garrett, Father and
Mother had been discussing the issue of whether she would want to relocate
with Child to the Cleveland area, and Mother “assured [him] that it wasn’t
going to happen” and that Garrett and his son planned to move to Indiana. Tr.
Vol. 1 at 74. Father stated, “[S]he was kinda leading me along to believe that
[Garrett and his son] were planning on moving down here.” Id. at 75.
However, in June 2013, one month after the dissolution was final, and provided
for Mother to have physical custody of Child, Father learned from Child that
Mother and Garrett “had been pretty much planning to move to Cleveland at
some point.” Id. Mother testified that she had always been “open and honest”
with Father and that she never lied to him about needing to move. Tr. Vol. 2 at
41. She explained that, after marrying Garrett, they were “doing the back and
forth,” splitting time between cities, in an effort to run her Henderson agency
and his two Ohio agencies. Id. at 43. To bring the family together, she began
inquiring with Rowland about options to migrate one place or the other.
[15] Father testified to his opposition to Mother’s request to relocate Child to Ohio,
expressing concern about the detrimental effect that the move would have on
his extended parenting time with Child, with whom he maintained a
particularly close relationship, as he saw her almost daily during the school
year. He also testified to his concern that her relationships with extended
family in the southern Indiana area would suffer, and she would lose touch
with them, observing that Child has no family or friends in Ohio other than
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 9 of 28 Mother, Garrett, and his son. Father also testified to the close relationship
Child enjoyed with O’Neal, who was able to watch Child on those occasions
when neither parent was available, and who lived just five minutes from the
FedEx terminal. He also “strongly opposed” Mother’s plan to enroll Child in a
parochial school in Ohio, as the parties had agreed not to impose any particular
religion on Child and instead let her choose as she matured. Tr. Vol. 1 at 104.
He also noted that, in Indiana, Child had the benefit of caretakers being family
members, such as O’Neal or Lauren, whereas in Ohio Mother had hired a
college student to care for Child and Garrett’s son as needed.
[16] Mother testified that Child had met friends and neighbors at Mother’s Avon
residence, and had a wonderful relationship both with Garrett and his son.
Mother indicated that if the relocation was granted, Child would attend the
same school that H. had attended for the last couple of years, which Mother
indicated was an “exceptional” school. Tr. Vol. 2 at 61. Mother noted Child’s
ability to adapt well, based on prior events, and she was showing that same
adaptability with regard to moving to Ohio. Mother explained she had a very
flexible work schedule and planned to involve Child in extra-curricular
activities in which she had expressed interest, such as basketball, tumbling, golf
and tennis. Mother opposed Father having primary physical custody of Child,
testifying, among other things, to her concern that Father has a sexual addiction
and is in denial about it. Father admitted to maintaining an “open”
relationship with Lauren, and Mother testified to her concern: “I don’t know
what she will see. I don’t know what she will be exposed to.” Id. at 76. She
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 10 of 28 explained that, as a part-time parent, Father still had the opportunity to engage
in behaviors in his private time, meaning “an outlet” to do what he wanted
when he was not with Child, but that if Child lived with Father on a full-time
basis, he would not have the time or ability to go away on weekends to engage
in that “lifestyle.” Id. at 76-77, 108. Mother also expressed her concern with
Lauren living in the residence, given that she agrees to the lifestyle and engages
in it. Upon cross-examination, Mother conceded that she was aware of the
open/swingers lifestyle before the dissolution and participated in it on more
than one occasion. In furtherance of her opposition to Father’s custody
modification request, Mother testified to having concern about Father taking
pain medications and testosterone, and she noted he did not always obtain his
medications legally. Father reported to the court the medications he was
currently taking and the diagnosed conditions associated with them.
[17] Rowland testified that the reason Mother requested a migration to Ohio was
“because she had remarried.” Appellant’s App. at A072. He confirmed that no
one at State Farm asked Mother to migrate or suggested that she do so; it was
her own idea and desire to do so. While Rowland was disappointed that
Mother was leaving his market territory because she was “an amazingly
successful agent” in Henderson, he had anticipated she would be requesting the
migration because of her “new family situation,” and he supported and
understood that decision. Id. at A079, A082. “I just knew that she had
remarried and that’s where her husband was living, so I kind of anticipated
something happening eventually.” Id. at A082. He further shared, that State
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 11 of 28 Farm expects its agents to actively manage their agencies “and it’s very difficult
to do that on a daily basis when you are living that far away from your agency.”
Id. at A084. Rowland explained that, as of the time of the hearing, Mother’s
Henderson agency had already been filled by a replacement agent, so if she
wanted to come back, she would need to stay in Ohio as an active agent and
begin the migration process again, which he characterized as “a waiting game,”
since it may happen in a short time or it could take years. Id. at A088; A104
(could be one month or ten years). Mother’s initial conversations with
Rowland about migration included inquiries about the possibility of Garrett
moving to Indiana, but Rowland did not have any direct conversations with
Garrett about it as Garrett would need to contact State Farm’s Sales Leader in
Garrett’s own area, and Rowland had no knowledge of whether that had
occurred.
[18] Provost testified that she saw Child on six occasions, after the parents had
received reports from school regarding two instances that Child was observed
engaging in a certain behavior, which affected only herself and did not involve
other students. Provost testified that Child was a bright, articulate, well
mannered, reserved girl, and was very cooperative as well. Provost never
witnessed Child engage in the behavior that was previously observed by her
teacher, and Provost felt the issue was resolved. Provost noted that both
parents had a good relationship with Child and that “they’ve done [] an
exceptional job” of leaving Child out of the issue concerning relocation. Tr.
Vol. 2 at 10. When presented with hypothetical questions regarding her
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 12 of 28 professional opinion whether someone who with a sexual addiction or an
addiction to pornography should have custody, she replied, over Father’s
objection, that it could put the child at risk of being exposed to sexuality and
that a professional should be consulted to evaluate the person and determine if
the addictions have been resolved. Provost confirmed that nothing during her
counseling sessions with Child indicated that her behavior at school occurred
because she had been exposed to something inappropriate.
[19] With regard to income, the evidence revealed that Father receives a $40,000.00
base salary from each of his two corporations, and, in addition, he is
compensated by FedEx in a number of ways, including compensation based on
number of packages delivered and the number picked up, the distance of the
stops from the terminal, and good driving records. Father presented the parties’
joint 2012 tax return, reflecting an adjusted gross income of $169,650.00,
although according to an attached IRS worksheet, his individual adjusted gross
income was $111,955.00, and the parties received a tax savings by filing jointly.
Pet’r’s Ex. J. Father testified that he had requested and received extensions to
file his 2013 returns, and thus, tax returns were not available as of the time of
the 2014 hearing, but his 2013 W-2s from the two Sapp corporations reflected
the same $40,000.00 salary as prior years. Father indicated that over the last
five years his income had fluctuated from a high of around $200,000.00 to a low
of $113,000.00, and that an annual income of $150,000.00 per year represented
a fair estimation and considered annual fluctuations. Father introduced a
proposed child support worksheet, reflecting an annual income of $150,000.00
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 13 of 28 for himself and $130,000.00 for Mother, resulting in a weekly obligation of
$107.21 from Mother to him if the trial court granted his request for change of
custody of Child. Pet’r’s Ex. K.
[20] With regard to Mother’s income, Rowland testified that State Farm
compensates its agents on a commission basis, receiving commission on new
business and on renewals, and they receive annual bonuses. In addition, the
agents may earn rewards such as vacations and the like; the monetary value of
the rewards are included in their gross income for tax purposes, so there is no
need to add back those values when determining net income. Mother’s 2013
tax return reflected an adjusted gross income of $130,232.00. By moving from
her Henderson, Kentucky agency to an agency in North Ridgeville, Ohio,
Mother testified that she anticipated her income would be lower in 2014, but
was hopeful that it would be higher in 2015. Mother introduced four proposed
child support worksheets, which considered variables in Father’s income and
his visitation, and in all four cases had Mother’s income at $130.232.00. Two
of the worksheets had Father at an income of $214,547.00, which Mother
calculated by taking his approximately $40,000.00 annual salary and adding
back to that Schedule E depreciation, expense deductions, and pension; one of
those two worksheets assumed 98 overnights for Father and the other assumed
120 overnights for Father. Resp’t’s Ex. 8 and 9. The other two proposed
worksheets used $150,000.00 as Father’s annual income, again with one
worksheet assuming 98 overnights for Father and the other assuming 120
overnights. Resp’t’s Ex. 10 and 11. Mother requested that the trial court
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 14 of 28 approve her request to relocate Child and adopt her proposed worksheet that
had Father’s income at $214,547.00, her at $130,232.00, and assumed 120
overnight visitations, resulting in a weekly child support obligation from Father
to Mother of $262.26. Tr. Vol. 2 at 73; Resp’t’s Ex. 8.
[21] At Father’s request, and after both parties had submitted proposed findings of
fact and conclusions thereon, the trial court issued its Findings of Fact,
Conclusions of Law, and Final Judgment, in which the trial court denied
Mother’s request to relocate with Child and granted Father’s petition to modify
physical custody of Child to him.3 The trial court ordered Mother to pay
$107.21 in weekly child support to Father. Mother now appeals.
Discussion and Decision
I. Exclusion of Evidence [22] Mother claims that the trial court erred when, over Father’s objection, it did not
allow into evidence counseling records and a summary of the records prepared
by Mother’s counsel, all of which pertained to Father’s individual counseling
and the parties’ marital counseling before the dissolution. Mother argues that
such reports and summaries should have been admitted under Indiana
Evidence Rule 803(6) and that it was reversible error to exclude the evidence.
3 The trial court entered sixty-six findings of fact and twenty-seven conclusions thereon, and the thoroughness of that order greatly facilitated our review of the issues. We also commend counsel for both parties on their briefing and advocacy in this appeal.
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 15 of 28 [23] Generally, the admission or exclusion of evidence is a determination entrusted
to the discretion of the trial court. Apter v. Ross, 781 N.E.2d 744, 752 (Ind. Ct.
App. 2003), trans. denied. We will reverse a trial court’s decision only for an
abuse of discretion, that is, when the trial court’s decision is clearly erroneous
and against the logic and effect of the facts and circumstances before the court.
Id. Moreover, any error in the admission or exclusion of evidence must affect
the substantial rights of a party before reversal is appropriate. Ind. Trial Rule
61; Ind. Evidence Rule 103(a). For several reasons, we find no error with the
trial court’s decision to exclude the evidence.
[24] As the trial court observed, the tendered counseling records all predated the
parties’ dissolution and settlement agreement, and, generally, evidence that pre-
dates a dissolution decree is inadmissible in custody modification cases. Ind.
Code § 31-17-2-21(c) (court shall not hear evidence on matter occurring before
last custody proceeding between parties unless matter relates to best interest of
child as described in Indiana Code section 31-17-2-8). Moreover, the record
reflects that Mother did not make an offer of proof as required by Indiana
Evidence Rule 103(a)(2), and by failing to make an offer of proof, Mother has
waived her claim that the exclusion of the records constituted trial court error.
Evid. R. 103(a)(2) (party may claim error in ruling to admit or exclude evidence
only if error affects party’s substantial right and, if ruling excludes evidence,
party informs the court its substance by offer of proof); Court View Centre, L.L.C.
v. Witt, 753 N.E.2d 75, 85 (Ind. Ct. App. 2001) (failure to make offer of proof
results in waiver of asserted evidentiary error).
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 16 of 28 [25] Regardless of waiver and the pre-dissolution nature of the counseling records,
the record before us indicates that the evidence Mother sought to present to the
trier of fact through those records was otherwise admitted. According to
Mother, she sought to admit the records primarily to introduce certain
admissions and disclosures that Father made, particularly about aspects of his
sex life. At trial, Mother cross-examined Father about having attended
counseling, and she elicited from him admissions he made during those
sessions, including his viewing of pornography and the possibility of having a
sexual addiction. Tr. Vol. 1 at 172-75. Father also testified that he and Lauren
have an “open,” rather than monogamous, relationship, and with her consent,
he sometimes engages in other sexual relationships. In addition to Father’s
testimony on the matter, Mother also testified that, during marriage counseling,
Father admitted that he was addicted to pornography, he wanted her to
embrace an “open” marital relationship and attend “swingers” clubs with him,
and he might have a sexual addiction. Tr. Vol. 2 at 75-76. Thus, while the
counseling records that Mother claimed would evidence those admissions were
excluded, Father’s and Mother’s testimonies otherwise presented substantially
the same information to the trial court.
[26] An error is harmless if it does not affect the substantial rights of the parties.
Spaulding v. Harris, 914 N.E.2d 820, 830 (Ind. Ct. App. 2009), trans. denied.
Where wrongfully excluded testimony is merely cumulative of other evidence
presented, its exclusion is harmless error. Id.; Ind. Ins. Co. v. Plummer Power
Mower & Tool Rental, Inc., 590 N.E.2d 1085, 1088 (Ind. Ct. App. 1992) (error in
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 17 of 28 exclusion of evidence is harmless when record discloses excluded evidence was
otherwise presented to jury). We have held that, even if an evidentiary decision
was an abuse of discretion, we will not reverse if the ruling constituted harmless
error. Spaulding, 914 N.E.2d at 829-30. Here, where substantially the same
information that Mother sought to present through the excluded records was
admitted through witness testimony, we find that any error in the exclusion of
the counseling records was harmless. Mother has failed to establish that the
trial court’s decision to exclude the counseling records, and her counsel’s
summary of them, was an abuse of discretion and affected her substantial
rights.
II. Denial of Relocation and Modification of Custody [27] Upon Father’s request, the trial court made specific findings of fact and
conclusions of law in its order modifying custody and preventing Child’s
relocation. We will 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 the witnesses. Ind. Trial Rule 52(A); D.C. v. J.A.C., 977
N.E.2d 951, 953 (Ind. 2012) (quotations omitted). Findings are clearly
erroneous only when the record contains no facts to support them either
directly or by inference. Id. A judgment is clearly erroneous when it is
unsupported by the findings and the conclusions entered on those findings. In
re Adoption of H.N.P.G., 878 N.E.2d 900, 904 (Ind. Ct. App. 2008), trans. denied.
An appellate court neither reweighs the evidence nor reassesses witness
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 18 of 28 credibility, and it views evidence most favorably to the judgment. D.C., 977
N.E.2d at 954.
[28] 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 §§ 31-17-2.2-1(b), 31-17-2.2-5(a). When this objection is made, “[t]he
relocating individual has the burden of proof 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 shows good faith and a legitimate reason, “the burden
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).
[29] A court must weigh the following factors in considering a proposed relocation,
as set forth in Indiana Code section 31-17-2.2-1(b):
(1) The distance involved in the proposed change of residence. (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.
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 19 of 28 [30] D.C., 977 N.E.2d at 954. “Other factors affecting the best interest of the child,”
referenced in subsection (b)(6), include, among other things: the child’s age and
sex; the parents’ wishes; the child’s wishes, with the wishes of children fourteen
years or older being given more weight; the child’s relationship with parents,
siblings, and any other person affecting the child’s best interests; and the child’s
adjustment to home, school, and the community. Ind. Code § 31-17-2-8; D.C.,
977 N.E.2d at 954 (citing Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind.
2008)).4 When one parent is relocating, it is not necessary for a court to find a
substantial change in one of these “other factors” before modifying custody.
D.C., 977 N.E.2d at 954.
[31] In D.C., a mother sought to relocate to Tennessee with the child. The trial court
found that while the mother met her initial burden of showing legitimate reason
and good faith in relocating, the father established that it was not in the child’s
best interest. Id. at 954-55. On appeal, a panel of this court determined that the
trial court’s best-interest determination was clearly erroneous. Id. at 956.
Reversing that decision, our Supreme Court took the opportunity to reaffirm
“the importance of appellate deference in family law matters[,]” stating:
Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an
4 Our Supreme Court has instructed, “by implication, the factors set forth for custody determinations and modifications require consideration when determining what other factors may affect the best interest of the child.” Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008).
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 20 of 28 extended period of time. Thus enabled to access credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children. [32] Id. Our Supreme Court contrasted the trial court’s unique position to that of
appellate courts, who “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.” Id. at 956-57
(citing Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quotations omitted)).
Therefore, “[o]n appeal it is not enough that the evidence might support some
other conclusion, but it must positively require the conclusion contended for by
appellant before there is a basis for reversal[.]” Id. at 957. Accordingly, we will
not substitute our own judgment “if any evidence or legitimate inferences
support the trial court’s judgment.” Id. As the D.C. Court recognized, “‘The
concern for finality in custody matters reinforces this doctrine.’” Id. (quoting
Baxendale, 878 N.E.2d at 1257-58).
[33] Initially, we note that Mother’s brief states that she and Child “live in
Evansville” and “are seeking to relocate to Avon, Ohio.” Appellant’s Br. at 3.
However, according to Father and the record before us, Mother had already
relocated, at the latest on June 1, 2014, and perhaps as early as December 2013,
when she moved her belongings out of the family residence. She contracted for
the new agency in May 2014, and began officially operating it in June 2014.
We recognize, as did the trial court, that due to the retirement of another agent,
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 21 of 28 Mother was provided with the opportunity to relocate to an existing office in
North Ridgeville, Ohio, and assume an existing book of business. In addition,
she was promoted from a temporary contract with State Farm to a permanent
one, which ensured stability for her. We do not judge Mother’s decision to
migrate to an agency in northern Ohio, where her husband lives and operates
two successful State Farm agencies. Our task is to determine whether the trial
court’s decision to deny her request to relocate Child and modify custody to
Father was clearly erroneous.
[34] Here, the trial court determined that Mother, as the party seeking to relocate,
did not satisfy her burden of establishing that her relocation was made for a
legitimate purpose or in good faith. Appellant’s App. at A023. In her November
2013 relocation Notice, Mother stated that “her job [was] now located near
Avon, Ohio.” Id. at A001-003. However, as the trial court recognized in its
findings, when Mother made that statement in the Notice, her job was not in
Ohio as stated, but rather was still in Henderson, Kentucky, through June 2014.
Further, the trial court in Finding No. 17 observed:
Although the Court has not yet ruled on whether to grant the relocation of the minor daughter with the Mother to northern Ohio, the Mother nevertheless agreed to and fully committed herself to the new agency in North Ridgeville, Ohio. [35] Id. at A010. The trial court’s conclusions likewise indicated that in the trial
court’s view Mother had unilaterally sought and completed relocation prior to
the trial court’s ruling on her request to relocate Child. Its conclusions
included:
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 22 of 28 72. Mother testified that one of her primary reasons for relocating is her employment, as she is now employed with a State Farm agency in North Ridgeville. However, the Court weighs this fact against Mother because she unnecessarily changed her employment after notifying Father of her intent to relocate. Mother testified that State Farm did not require her to migrate. She initiated the inquiry into migrating, and she ultimately made the choice to leave her Henderson office of her own volition. To some extent, it seems that Mother attempted to create another reason to support her relocation request by taking a new job. Parents cannot unilaterally create circumstances that bolster their request to relocate their minor child. Moreover, Mother was gainfully employed and enjoying notable success at her Henderson office. There was no evidence to suggest that her success at the branch would not continue. Furthermore, Mother did not migrate to the North Ridgeville office in hopes of earning a larger salary. In fact, Mother testified that she expected her income to decrease, at least temporarily, after migrating because she will have to create a new “book of business.” 73. Mother also testified that she moved to Avon because she wanted to be with her husband, Mr. Estes, who is employed with State Farm in the Avon area. However, having Mr. Estes migrate to an agency in or around Newburgh was a viable option. Additionally, Mr. Estes could have moved to Newburgh and attempted to work at his Ohio offices remotely. The Court is not convinced that Mother and Mr. Estes adequately explored these possibilities. 74. For these reasons, Mother has not satisfied her burden of showing that her proposed relocation of the minor child is made in good faith and for a legitimate purpose. Id. at A022-023. The trial court thereafter reviewed and reached conclusions on
statutory factors related to the best interest of the child, id. at A025-A030, and
determined that it was not in Child’s best interest to relocate to Ohio. Id. at
A030.
[36] Mother argues that she met the statutory burden to establish the good faith and
legitimacy requirements of Indiana Code section 31-17-2.2-5(c), given that
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 23 of 28 relocating to Ohio to run her own agency, already established with a set of
business and under a permanent State Farm contract, will strengthen her
family’s financial situation, including Child’s and, in addition, will unite
Mother with her husband. In H.H. v. A.A., 3 N.E.3d 30, 35 (Ind. Ct. App.
2014), our colleagues observed that “case law has not explicitly set forth the
meaning of legitimate and good faith reasons in the relocation context.” The
H.H. court recognized, however, that “‘it is common in our society that people
move to live near family members, for financial reasons, or to obtain or
maintain employment,’” and it adopted the reasoning that “these and similar
reasons are what the legislature intended in requiring that relocation be for
‘legitimate’ and ‘good faith’ reasons.” Id. (quoting T.L. v. J.L., 950 N.E.2d 779,
787-88 (Ind. Ct. App. 2011). Assuming without deciding that Mother is correct
that the trial court erred when it determined that she did not meet the legitimate
reason and good faith requirements of the statute, we must still determine
whether the trial court erred when it determined that Father met his burden of
establishing that it was not in Child’s best interest to relocate to Ohio. See H.H.,
3 N.E.3d at 35 (resolution of relocation disputes ultimately turns on judicial
determination of best interest of child); T.L., 950 N.E.2d at 788 (same). To
make its determination, the trial court in this case needed to consider, among
other things, the child’s age and sex; the parents’ wishes; the child’s wishes,
with the wishes of children fourteen years or older being given more weight; the
child’s relationship with parents, siblings, and any other person affecting the
child’s best interests; and the child’s adjustment to home, school, and the
community. Ind. Code §§ 31-17-2.2-5(d), 31-17-2-8. Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 24 of 28 [37] Here, the trial court conducted a two-day evidentiary hearing and heard the
testimony of nine witnesses. The trial court heard the testimony that Child
attends, and excels, at her elementary school, participates in local extra-
curricular activities and sports both in and out of school, has a stable home life,
and has formed friendships with friends and neighbors. All of her extended
family, on both sides of the family, live in the southern Indiana area. She and
O’Neal have a close and bonded relationship, with O’Neal often providing any
needed childcare. Child enjoys periodic social outings with Father’s sister, and
she celebrates holidays and birthdays with grandparents and other extended
family. Father testified to his concern that those relationships will deteriorate if
Child were relocated to Ohio. Father testified to exercising regular, many times
daily, visitation with Child. Witnesses testified that both Mother and Father
were good parents and had a loving and appropriate relationship with Child.
[38] In her appeal, Mother argues that the trial court failed to consider aspects of
Father’s sex life and how they could impact Child if she were in his care full-
time and about his medication habits. Mother also notes that, if the relocation
were granted, Father testified that he would have the ability to exercise 98 to
120 overnights per year and that he acknowledged the ability to purchase
another home in the Avon, Ohio area so that he could exercise at least one
weekend per month with Child. The trial court heard, evaluated, and
considered all of these matters. The trial court was skeptical of Mother’s
concerns regarding Father’s private sex life, and it found that none of the
medical conditions or prescriptions have been shown to affect Father’s care for
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 25 of 28 Child. Appellant’s App. at A018-19. Mother is asking us to reweigh the evidence
which we cannot do. In re Marriage of Harpenau, 17 N.E.3d 342, 348 (Ind. Ct.
App. 2014).
[39] The trial court’s findings and conclusions indicate that it was troubled that
Mother decided to accept and begin new employment regardless of the fact that
no hearing had yet been held, as “[I]t signals to the Court that Mother has
placed her own interests ahead of [Child’s].” Appellant’s App. at A029. The trial
court heard the testimony and examined the evidence, ultimately finding that a
relocation to Ohio would be contrary to Child’s best interest and that a change
of custody was warranted. “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.” Harpenau, 17 N.E.3d at 348. Based on the
record before us, and consistent with the applicable clear-error standard of
review, we cannot say that there were no facts, either directly or by inference, to
support the trial court’s decision.
III. Child Support [40] Having found that the trial court’s decision to deny relocation and modify
primary physical custody was not clearly erroneous, we turn to Mother’s claim
that the trial court abused its discretion when it ordered Mother to pay Father
child support in the amount of $107.21 per week. In reviewing a trial court’s
modification of child support, we reverse only for an abuse of discretion. Id. at
349. An abuse of discretion occurs when the decision is against the logic and
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 26 of 28 effect of the facts and circumstances before the court, including any reasonable
inferences. Id.
[41] Mother contends that the trial court abused its discretion when in calculating
child support it used an annual income figure of $150,000.00. She proposed
that the trial court utilize an annual income for Father of $214,547.00, arguing,
“The Father’s income should be calculated by considering his expense
deduction, his depreciation, and his investment tax credits.” Appellant’s Br. at
31. Mother provides no support, however, for the proposition that the trial
court was required to add to Father’s salary depreciation, expense deduction,
and pension. In fact, she reminds us that “the trial court is vested with
discretion regarding the validity of business expenses and deductions taken for
tax purposes by a business owner.” Id. at 30 (quoting Bass v. Bass, 779 N.E.2d
582, 593 (Ind. Ct. App. 2002), trans. denied). Mother also asserts that child
support was computed improperly, and warrants remand for recalculation,
because the trial court employed 2013 income figures for Mother and 2012
income figures for Father, placing Mother “in a detrimental position” by using
a higher figure for her and a lower figure for Father. Appellant’s Br. at 32.
Based on the record before us, Mother has not established that she was placed
in a detrimental position, or that the trial court abused its discretion, when it
calculated child support.
[42] Here, the trial court received testimony from Father regarding his income, as
well as documentary evidence, including W-2s, K-1s, tax returns, and 1099s for
several years. The trial court recognized that both parties are self-employed
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015 Page 27 of 28 independent contractors, whose income fluctuates and is dependent on
variables and that, consequently, there is difficulty in calculating income for
self-employed individuals. Appellant’s App. at A020. Taking into consideration
the evidence before it, the trial determined that Father’s proposed child support
worksheet was “reliable” and represented an accurate assessment of the parties’
incomes for purposes of determining child support. Id. The trial court
calculated child support based on annual incomes of $150,000.00 for Father
and $130,000.00 for Mother. The record before us reveals that there was
evidence to support this decision. Mother has failed to establish that the trial
court abused its discretion in its child support calculation.5
[43] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
5 We also note, and as Father reminds us, Mother submitted at trial proposed alternate child support obligation worksheets that identified Father’s annual income at $150,000.00, which is the annual income figure ultimately employed by the trial court. Resp’t’s Ex. 10 and 11. We recognize that Mother requested the trial court to adopt a different proposed worksheet, but she nevertheless offered and the trial court admitted into evidence two worksheets with Father’s income at $150.000.00. To some extent, then, she invited the trial court to utilize this income figure, which, even if it does not rise to the level of waiver, at a minimum supports our determination that the trial court did not abuse its discretion.
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