Tricia Wallerstedt v. Christopher Wallerstedt (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 30, 2016
• Docket: 82A04-1511-DR-1987
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 30 2016, 10:00 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Susan Wilkie Susan Wilkie Law Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tricia Wallerstedt, June 30, 2016 Appellant, Court of Appeals Cause No. 82A04-1511-DR-1987 v. Appeal from the Vanderburgh Superior Court Christopher Wallerstedt, The Honorable Jeff Tornatta, Appellee. Judge Trial Court Cause No. 82D06-0408-DR-860

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 1 of 12 Case Summary [1] Tricia Wallerstedt (“Mother”) appeals the trial court’s modification of child

custody and child support. We affirm in part, reverse in part, and remand.

Issues [2] Mother raises several issues, which we restate as:

I. whether the trial court properly modified child custody; and

II. whether the trial court properly modified the child support order.

Facts [3] Mother was married to Christopher Wallerstedt (“Father”), and the couple had

two children, Ja.W. and Jo.W. The couple’s marriage was dissolved in

December 2004, and Mother was granted sole physical and legal custody of the

children. At that time, Father was awarded supervised visitation because a

protective order had been issued against Father due to domestic violence. In

2008, Mother and Father reconciled. In September 2010, Mother and the

children moved to Virginia Beach, Virginia, to help her brother. Mother and

Father planned that Father would join Mother and the children in Virginia after

he finished his schooling. At some point, however, the parties’ relationship

deteriorated, and Father never moved to Virginia with Mother and the children.

Father subsequently remarried and had another child.

Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 2 of 12 [4] In July 2014, Father filed a petition for contempt regarding parenting time. The

parties reached a parenting time agreement, and Father dismissed the petition

in August 2014. However, in October 2014, Father filed another contempt

petition. In December 2014, Mother and the children returned to Evansville

and began staying with Mother’s family so that Mother could attend the court

hearings without driving back and forth from Virginia. In April 2015, Father

filed a petition to modify custody and an objection to Mother’s relocation to

Virginia. The trial court held a hearing on the pending matters, and Father

withdrew his contempt petition. In August 2015, the trial court entered the

following order:

There has been a substantial and continuing change, including but not limited to, Mother’s relocation with the children to Virginia Beach, Virginia. Her move has made it difficult for the Father to have regular and consistent contact with the children. It is in the best interest of the children that the Mother resides in the Evansville area. While the Court does not modify custody, it is entering this order after the Mother reluctantly advised she will move back to Evansville.

Parties shall have joint legal custody with the Mother to have primary physical custody. Mother is to obtain her own residence (she currently is residing with family). The children are to attend a regular school setting. However, because both children have attended Independent Educational Programs, it may include some on-line schooling, if deemed appropriate by the school and both parents. Both children shall continue with counseling.

Father shall have parenting time every Friday from after school or work until Sunday at 6 p.m., except the weekend he works on Saturday. He shall enjoy an overnight during the week to Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 3 of 12 coincide with his day off. Since this results in the Father having most weekends, if the Mother’s family has a special event, the Father should afford her the opportunity to have the children. Father shall enjoy parenting time at all other times agreed upon and shall have an additional week when he is not working. Until the relationship between [Ja.W.] and other members of the Father’s household improves, [Ja.W.] is not to be in Father’s home when the Father is not present. Court leaves to the parties’ good judgment, as to when overnights with [Ja.W.] and the Father are appropriate.

Father is ordered to financially assist the Mother in moving her belonging[s] to Evansville and setting up her household. Father shall pay support in the amount of $100.00 per week consistent with the attached CSPW, effective 08/14/15. Mother to pay the first $692.00 of uninsured medical expenses annually. Thereafter, Father to pay 63% and Mother 37%. Mother’s request for attorney fees is denied.

App. pp. 8-9.

[5] Mother filed a motion to correct error, which the trial court granted in part

because it found that Father’s income was calculated incorrectly on the child

support worksheet. The trial court modified Father’s child support obligation

to $154 per week effective October 23, 2015. Mother now appeals.

Analysis [6] We initially note that Father did not file an appellee’s brief. When an appellee

fails to submit a brief, we do not undertake the burden of developing arguments

for him, and we apply a less stringent standard of review with respect to

showings of reversible error. Julie C. v. Andrew C., 924 N.E.2d 1249, 1255 (Ind.

Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 4 of 12 Ct. App. 2010). That is, we may reverse if the appellant establishes prima facie

error, which is an error at first sight, on first appearance, or on the face of it. Id.

[7] The trial court entered findings of fact and conclusion thereon. Pursuant to

Indiana Trial Rule 52(A), the reviewing court 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.” D.C. v.

J.A.C., 977 N.E.2d 951, 953 (Ind. 2012). Where a trial court enters findings sua

sponte, the appellate court reviews issues covered by the findings with a two-

tiered standard of review that asks whether the evidence supports the findings,

and whether the findings support the judgment. In re S.D., 2 N.E.3d 1283, 1287

(Ind. 2014). Any issue not covered by the findings is reviewed under the

general judgment standard, meaning a reviewing court should affirm based on

any legal theory supported by the evidence. Id.

[8] Our courts have expressed a “preference for granting latitude and deference to

our trial judges in family law matters.” T.L. v. J.L., 950 N.E.2d 779, 784 (Ind.

Ct. App. 2011). “Our supreme court has recently re-emphasized this principle,

stating that we afford such deference because of trial judges’ ‘unique, direct

interactions with the parties face-to-face.’” Id. (quoting Best v. Best, 941 N.E.2d

499, 502 (Ind. 2011)). “[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 the appellant before there is a basis for reversal.” Best, 941

N.E.2d at 503. We cannot weigh the evidence but must consider it in a light

most favorable to the judgment. Id. An appellate court may not substitute its

Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 5 of 12 own judgment for that of the trial court if any evidence or legitimate inferences

support the trial court’s judgment. Id.

I. Modification/Relocation

[9] Mother makes several arguments related to the modification and relocation

statutes. Mother first argues that the relocation statutes are inapplicable here

because Mother and Father made a joint decision to move to Virginia and

Father abandoned Mother and the children when he did not move with them.

Mother also argues that Father’s failure to object to the move to Virginia from

September 2010 to April 2015 resulted in an acquiescence to the move. Finally,

Mother argues that the trial court erred by modifying custody and by ordering

her to move out of her parents’ residence.

[10] In Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008), our supreme court discussed

the relationship between the custody modification statute and the relocation

statutes. The general provision governing custody modification is found in

Indiana Code Section 31-17-2-21. Modifications are 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 following factors:

(1) The age and sex of the child.

(2) The wishes of the child’s parent or parents.

(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.

Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 6 of 12 (4) The interaction and interrelationship of the child with:

(A) the child’s parent or parents;

(B) the child’s sibling; and

(C) any other person who may significantly affect the child’s best interests.

(5) The child’s adjustment to the child’s:

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

Ind. Code § 31-17-2-21(a); Ind. Code § 31-17-2-8.

[11] On the other hand, the relocation of a parent is governed by Indiana Code

Chapter 31-17-2.2. Under Indiana Code Section 31-17-2.2-5(c), the relocating

individual has the burden of proof that the proposed relocation is made in good

faith and for a legitimate reason. If the relocating individual meets that burden

of proof, 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).

Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 7 of 12 In the case of a proposed relocation, the trial court must take into account the

following factors in determining whether to modify a custody order:

(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.

I.C. § 31-17-2.2-1.

Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 8 of 12 [12] Our supreme court has held that the relocation statute incorporates all of the

modification of custody considerations “but adds some new ones.” Baxendale,

878 N.E.2d 1257. The relocation statutes do “not necessarily require a

substantial change” in one of the modification factors. Id. Relocation “may or

may not warrant a change of custody.” Id.

[13] Mother argues that Father acquiesced to the relocation and cannot now

challenge it. We addressed a similar argument in Jarrell v. Jarrell, 5 N.E.3d 1186

(Ind. Ct. App. 2014), trans. denied. There, the mother moved approximately

three hours away with the child but failed to file a notice of relocation, and the

father did not object to the relocation until the child was ready to start

kindergarten nearly two years later. We noted that both the mother and the

father had failed to comply with the relocation statutes. The mother should

have provided notice of the relocation, and the father should have filed an

earlier objection. We concluded, however, that the father had acquiesced to the

mother’s relocation. Consequently, we found that the modification statute, not

the relocation statute, supplied the factors that the trial court should have

considered in determining whether to modify custody. We concluded there

was “a sufficient change in circumstances to support a custody modification,”

and modification was in the child’s best interest. Jarrell, 5 N.E.3d at 1193-94.

[14] Similarly, here, Mother and the children moved to Virginia in September 2010.

Although Father was supposed to move with them after he finished his

schooling, he eventually decided not to make the move. Father did not object

to the relocation until April 2015. Given Father’s long acquiescence in the

Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 9 of 12 relocation, we conclude that, as in Jarrell, the custody modification statute, not

the relocation statutes, are applicable here.

[15] The trial court concluded that a substantial change had occurred because it had

become difficult for Father to have regular and consistent contact with the

children. The relocation had clearly resulted in a significant change in the

interaction and interrelationship of the children with Father. The guardian ad

litem (“GAL”) testified that the distance created “a real problem for these

children.” Tr. p. 14. Ultimately, the GAL recommended that Father have

custody of the children because his household was more stable. However, the

GAL acknowledged that the children were very close to Mother and needed “a

lot of time” with Mother. Id.

[16] Rather than follow the GAL’s custody recommendation, the trial court

suggested that Mother stay in Evansville instead of returning to Virginia. The

trial court recognized that Mother could return to Virginia, but believed that

regular, consistent contact with both parents was in the children’s best interest.

Mother reluctantly agreed that she was willing to move back to Indiana rather

than change physical custody to Father.

[17] The trial court made extensive comments after the parties presented evidence.

In particular, the trial court was “really concerned” about Ja.W. Tr. p. 176.

Ja.W. has struggled significantly with reading, getting along with other children

at school, and adjusting to staying with Father and stepmother for extended

periods over the summer. Jo.W. was described as overly accommodating and

Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 10 of 12 “ghostlike.” Id. at 127. Mother had home-schooled the children in Virginia,

and they were enrolled in an on-line school in Indiana. However, the trial court

and the GAL both recommended that the children attend public school. Given

the significant distance between Father and the children and the children’s

struggles, the trial court’s conclusion that there was a substantial change in one

of the custody modification factors and that a change in custody was in the

children’s best interest is not clearly erroneous.

[18] Finally, Mother challenges the trial court’s order that Mother obtain her own

residence. Mother contends that ordering her to move is “an infringement on a

fundamental right.” Appellant’s Br. p. 20. Mother moved back to Indiana with

the children to participate in the court hearings. However, she maintained her

housing in Virginia, and she had to live with family in Indiana. She and the

children were living with her parents, her brother, his wife and three children,

and her sister and her two children in a three bedroom, one bathroom house.

Mother, grandmother, and Jo.W. were sharing a bed, and Ja.W. was sleeping

on a cot. The trial court recognized that it would take some time for Mother to

get established and find housing for herself and the children, but encouraged

Mother to start moving toward that goal. Given the overcrowding at Mother’s

current housing, we cannot say that the trial court’s order is clearly erroneous.

II. Child Support

[19] Mother argues that the trial court erred when it modified the child support

order. On August 10, 2015, the trial court issued its order regarding custody

and child support. Mother filed a motion to correct error regarding the child Court of Appeals of Indiana | Memorandum Decision 82A04-1511-DR-1987 | June 30, 2016 Page 11 of 12 support order, and the trial court corrected the error on October 23, 2015. The

trial court, however, made the effective date of the new child support order

October 23, 2015, instead of August 10, 2015. Mother argues that the child

support order should have been effective August 10, 2015.

[20] A trial court has discretion to make a modification of child support relate back

to the date the petition to modify is filed, or any date thereafter. Becker v. Becker,

902 N.E.2d 818, 820 (Ind. 2009). However, when the trial court failed to make

the child support correction retroactive to the original August 2015 order,

Mother was unfairly penalized by the loss of the three months of increased child

support. We conclude that when the trial court corrected the calculation error

in the August child support calculation, it should have made the revised child

support order effective August 10, 2015, rather than October 23, 2015.

Conclusion [21] The trial court’s modification of custody is not clearly erroneous, but the trial

court abused its discretion when it modified the child support order. We affirm

in part, reverse in part, and remand.

[22] Affirmed in part, reversed in part, and remanded.

Vaidik, C.J., and Mathias, J., concur.

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