Kyle W. Dixon v. Ara J. Dixon

982 N.E.2d 24, 2013 WL 177949, 2013 Ind. App. LEXIS 13
CourtIndiana Court of Appeals
DecidedJanuary 17, 2013
Docket34A05-1206-DR-303
StatusPublished
Cited by9 cases

This text of 982 N.E.2d 24 (Kyle W. Dixon v. Ara J. Dixon) 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
Kyle W. Dixon v. Ara J. Dixon, 982 N.E.2d 24, 2013 WL 177949, 2013 Ind. App. LEXIS 13 (Ind. Ct. App. 2013).

Opinion

OPINION

KIRSCH, Judge.

Kyle W. Dixon (“Father”) appeals the trial court’s order granting the notice of intent to relocate filed by Ara J. Dixon (“Mother”). Father raises the following restated issue for our review: whether the *25 trial court abused its discretion in granting Mother’s notice of intent to relocate because it did not take into account the effect of the move on the best interests of the children.

We affirm.

FACTS AND PROCEDURAL HISTORY

The marriage of the parties was dissolved on December 4, 2007, and the decree was entered on June 23, 2008. Mother was granted physical custody of the parties’ two children, and Father was granted parenting time. On October 19, 2011, Mother filed a notice of intent to relocate due to her plans to get re-married and move with her new husband to Illinois. Father filed a petition to modify custody and support on October 25, 2011. Hearings were held on these filings on April 17 and May 15, 2012.

At the time that Mother filed her notice of intent to relocate, she was a second grade teacher at Kokomo Center Schools and rented a residence in Kokomo that had been the children’s home the majority of the time since the dissolution. One child was in the fourth grade, and the other was in the first grade. Mother’s fiance is a contractual lobbyist for the Illinois General Assembly and has lived in Illinois since the winter of 1998. When Mother filed her notice of relocation, she planned to get married on July 7, 2012; she testified she would marry her fiance whether or not the trial court approved the relocation, but would not move to Illinois if that meant losing custody. Tr. at 107, 121. 1

Father works as safety director at Beck Hybrids in Atlanta, Indiana. He is remarried and has a son with his new wife. Her two sons from a previous relationship also live with her and Father. Father’s extended family lives in central Indiana and gets together frequently. Evidence was presented that Father participated in many activities with the children and attended most of their events because of the flexibility with his work schedule.

Testimony was given that the drive time between Mother’s new home in Illinois and Father’s home in Indiana was approximately three hours and fifteen minutes. Mother testified that she was willing to continue alternating weekends with Father if her request to relocate was granted. Id. at 94. She was also willing to continue her past practice of ensuring the children were in Indiana for holidays so they could spend time with Father and his family. Id. at 70, 98. Mother further agreed that she would be willing to accommodate Father for special occasions or extra parenting time when appropriate. Id. at 94.

On May 21, 2012, the trial court entered its order granting Mother’s request to relocate, which effectively denied Father’s motion to modify custody. The trial court specifically found that Mother’s desire to relocate was made in good faith and for a legitimate reason and was not done in haste. Appellant’s App. at 23. It further stated that, because Mother had been the children’s primary caretaker since the separation, it was in their best interests to remain in her physical custody. Id. Father now appeals.

DISCUSSION AND DECISION

“Custody modifications are reviewed for an abuse of discretion, with a ‘preference for granting latitude and deference to our trial judges in family law mat- *26 ters.’ ” Rogers v. Rogers, 876 N.E.2d 1121, 1126 (Ind.Ct.App.2007) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind.1993)), trans. denied. We will set aside judgments in custody modifications only when they are clearly erroneous, and we will not substitute our own judgment if any evidence or legitimate inferences support the trial court’s judgment. Id. “On appeal, it is not enough that the evidence might support some other conclusion, but it must positively require the result sought by the appellant before there is a basis for reversal.” Id. (citing Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)).

Father argues that the trial court abused its discretion when it granted Mother’s request to relocate and denied his motion to modify custody. He specifically contends that the trial court failed to consider the children’s interaction and relationships with parents, extended family, friends, and other persons or the children’s adjustment to home, school, and community when it made its determination. Father also claims that the trial court failed to consider the hardship of the relocation upon Father’s parenting time with the children.

Under Indiana’s Relocation Statute, a trial court is confronted with two inquiries. Id. at 1128. First, the relocating parent must establish that the relocation is being made in good faith and for a legitimate reason. Ind.Code '§ 31-17-2.2-5(c). If the relocating parent satisfies that burden, the burden shifts to the non-relocating parent to show that the proposed relocation is not in the best interests of the child. I.C. § 31-17-2.2-5(d). In general, the trial court must consider the financial impact of relocation on the affected parties and the motivation for the relocation in addition to the effects on the child, parents, and others, such as siblings or other persons who may significantly affect the children’s best interests, as relevant to every change of custody. Baxendale v. Raich, 878 N.E.2d 1252, 1256 (Ind.2008).

In the present case, Father’s argument seems to focus on the second inquiry of whether he proved that the proposed relocation was not in the best interest of the children. The evidence demonstrated that Mother has been the primary caretaker of the children since the parties’ separation, and Father had regular visitation. The evidence also showed that Mother was flexible with Father’s requests for extra parenting time and changes in the parenting time schedule and was willing to share holidays with Father. Tr. at 70-71. It was also shown that, although the travel time between Mother’s new home and Father’s home was approximately three hours and fifteen minutes, the children would be with Father on alternating weekends, virtually all holidays, and for a substantial part of the summer, just as they had been before the relocation. Even though the relocation will make it difficult for Father to be present at all of the children’s school functions and sporting events, the distance is not prohibitive, and Father did not present any expert testimony as to any negative effect that the move would have on the children.

In support of his argument, Father cites to Green v. Green, 843 N.E.2d 23 (Ind.Ct.App.2006), trans. denied,

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982 N.E.2d 24, 2013 WL 177949, 2013 Ind. App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kyle-w-dixon-v-ara-j-dixon-indctapp-2013.