      MEMORANDUM DECISION
                                                                       Sep 22 2015, 10:22 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
      Ryan H. Cassman                                          Leanna Weissmann
      Cathy M. Brownson                                        Lawrenceburg, Indiana
      COOTS, HENKE & WHEELER, P.C.
      Carmel, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      P. J. K.                                                 September 22, 2015
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               29A04-1412-DR-595
              v.                                               Appeal from the Hamilton
                                                               Superior Court
      L. M. K.,                                                The Honorable Steven R. Nation,
      Appellee-Respondent                                      Judge
                                                               Trial Court Cause No.
                                                               29D01-1008-DR-979



      Friedlander, Senior Judge.


[1]   Since their dissolution of marriage in 2012, P.J.K. (Father) and L.M.K

      (Mother) have shared joint legal and physical custody of their daughters,

      alternating weekly parenting time in and near Dillsboro, Indiana. About a year

      Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015   Page 1 of 12
      later, Father filed a notice of intent to relocate to Noblesville, Indiana, along

      with a motion to modify custody. Mother objected to the request to relocate

      and filed her own motion to modify custody. Following a two-day evidentiary

      hearing, the trial court granted Mother’s motion to modify custody and

      awarded primary physical custody to Mother. Father presents the following

      consolidated and restated issues on appeal:


                 1.       Was the trial court’s decision to grant primary physical
                          custody to Mother clearly erroneous?


                 2.       Is the parenting time award contrary to the trial court’s
                          specific findings?


[2]   We affirm.


[3]   Mother and Father married in 1994 and had three daughters during their

      marriage, N.K., A.K., and R.K.1 The couple separated in May 2010, and

      Mother moved the girls from Noblesville back to her hometown of Dillsboro.

      Mother moved in with her parents, and Father eventually followed, moving in

      with his parents in a town near Dillsboro. Mother and Father shared custody of

      the children on alternating weeks. The children excelled in school in Dillsboro,

      participated in sports, and benefitted from a “strong network of support”,

      including friends and extended family. Appellant’s Appendix at 38.




      1
          The daughters were born in 2001, 2004, and 2005, respectively.


      Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015   Page 2 of 12
[4]   The marriage was dissolved in April 2012, and the trial court continued the

      shared custody arrangement. On February 13, 2013, Father sent an email to

      Mother indicating his intent to move back to Noblesville. He encouraged

      Mother to also relocate but indicated that if she was unwilling or unable to

      move, he would like primary custody of the children. Mother responded that

      she did not believe moving would be in their best interests.


[5]   On April 15, 2013, Father filed a Verified Notice of Intent to Relocate and

      Petition to Modify Custody, Parenting Time and Child Support. Specifically,

      Father sought primary physical custody of the children in Noblesville. Mother

      objected and filed for modification of custody given Father’s intended move of

      about 105 miles away. Like Father, Mother requested primary physical custody

      because the existing joint custody and equal parenting time arrangement would

      be unreasonable following Father’s move.


[6]   Following a custody evaluation, the court held an evidentiary hearing on July

      14 and September 8, 2014. Both parties presented considerable evidence in

      support of their competing motions to modify custody in light of Father’s

      relocation. On December 4, 2014, the trial court entered a lengthy modification

      order awarding primary physical custody to Mother. With respect to parenting

      time, the court ordered: “Father’s parenting time shall be by agreement of the

      parties, but not less than that which is set forth in the Indiana Parenting Time

      Guidelines. The Court does not find that distance should be a factor in

      determining Father’s parenting time according to the guidelines.” Id. at 25.

      Father appeals from this order.

      Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015   Page 3 of 12
[7]   In this case, the trial court entered specific findings of fact and conclusions of

      law in its order modifying custody. Accordingly, we will not set aside the

      findings or judgment unless clearly erroneous, and we will give due regard 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 (Ind. 2012). In other words, it is not enough that the

      evidence might support some other conclusion, as reversal is warranted only if

      the evidence positively requires the conclusion contended by the appellant. Id.


[8]   Findings are clearly erroneous only when the record contains no facts to

      support the findings either directly or by inference. Id. We will neither reweigh

      the evidence nor reassess witness credibility, and all evidence will be viewed in

      a light most favorable to the judgment. Id.


[9]   Our Supreme Court has emphasized the “considerable deference” afforded trial

      courts in family law matters. Id. at 953. Appellate deference is particularly

      warranted in these matters due to the trial court’s “unique, direct interactions

      with the parties face-to-face, often over an extended period of time.” Best v.

      Best, 941 N.E.2d 499, 502 (Ind. 2011). “[E]nabled to assess 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.” Id.


                                                        1.




      Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015   Page 4 of 12
[10]   There are two ways for a nonrelocating parent to object to a proposed

       relocation: a motion to modify a custody order under Ind. Code Ann. § 31–17–

       2.2–l(b) (West, Westlaw current with all 2015 1st Regular Session of the 119th

       General Assembly legislation) and a motion to prevent the relocation of a child

       under I.C. § 31–17–2.2–5(a) (West, Westlaw current with all 2015 1st Regular

       Session of the 119th General Assembly legislation). Baxendale v. Raich, 878

       N.E.2d 1252 (Ind. 2008). Mother filed both. Regardless of the procedural

       vehicle employed, however, when a relocation is made in good faith, as in this

       case,2 the analysis ultimately turns on the best interests of the children. Id.


[11]   When custody modification is sought as the result of a relocation, the trial court

       is required to take into account the following factors:


               (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




       2
        The trial court concluded that Father’s proposed relocation was made in good faith and for a legitimate
       purpose.

       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015        Page 5 of 12
               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(b).


               “Other factors affecting the best interest of the child” 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.


       D.C. v. J.A.C., 977 N.E.2d at 954 (citing I.C. § 31-17-2-8) (West, Westlaw

       current with all 2015 1st Regular Session of the 119th General Assembly

       legislation)).


[12]   Father argues that certain of the trial court’s findings of fact are clearly

       erroneous, specifically challenging findings number 7, 30, and 38. He argues

       that each of these alleged errors affected the judgment against him.


[13]   Finding number 7 states:

       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015   Page 6 of 12
               The analysis of the facts and circumstances by the Court, as well
               as the opinion of John Ehrmann, Jr., Psy.D., in his custody
               evaluation, indicate that the best scenario for the children would
               be to spend as close to equal time with both parents, and for the
               parties to reside in the same city or region such that equal
               parenting time would be practicable. That is not, unfortunately,
               the reality of this situation, and the Court must determine what is
               in the best interests of the children given the present realities.


       Appellant’s Appendix at 15.


[14]   Dr. Ehrmann testified at the custody hearing: “My preference if I could wave

       my magic wand would be to have [Mother] very close and very active and

       equally a participant. I wish that were possible.” Transcript at 287. He later

       testified: “I’ve endorsed hypothetically if we had them in the same community

       equal time.” Id. at 299. He opined further that if Mother and Father “lived in

       the same community or within reasonable proximity”, the children would want

       to continue the joint physical custody arrangement. Id. Finally, Dr. Ehrmann

       agreed with Mother’s counsel that “the ideal situation is for the parties to live in

       the same community and share joint custody physical and legal”. Id. at 300.

       Finding number 7 was amply supported by the evidence.


[15]   Father also challenges finding number 30, which provides:

               While the Court does not find that Father has failed to abide by
               the statutory requirements for a notice of intent to relocate,
               Mother first learned of Father’s proposed move from the
               children. Likewise, Mother learned of Father’s fiancée, and of
               Father’s marriage, from the children. On these most
               fundamental aspects of raising children—who will be raising

       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015   Page 7 of 12
               them, and where they will live (even part time)—Father elected
               to share this information with the children and to exclude their
               Mother.


       Appellant’s Appendix at 20. Father challenges only part of this finding, claiming

       that no evidence was presented that Mother found out about Father’s planned

       relocation from the children.


[16]   Although this portion of the finding was technically erroneous, there was

       evidence that Father might have spoken with the children about the move

       before informing Mother and that he asked the children their wishes without

       discussing it with Mother first. This, as well as the other portion of the finding

       not challenged by Father (i.e., that Mother learned of Father’s fiancée and

       marriage from the children), support the court’s ultimate finding that Father

       had a propensity to share important information with the children and to

       inappropriately exclude Mother.


[17]   Finally, Father challenges finding number 38:

               The Court finds the age of the children, and the fact that they are
               all female, to be significant. Mother should play a significant
               role in the children’s lives, and should have a significant physical
               presence there as well.


       Id. at 22.


[18]   The trial court can, and in fact must, take into account the age and sex of each

       child, which is a best interest factor listed in I.C. § 31-17-2-8(1). Here, the

       evidence established the ages of the girls, and there was also evidence presented
       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015   Page 8 of 12
       that R.K. had recently entered puberty. The trial court’s finding in this regard is

       not clearly erroneous.


[19]   In addition to challenging three of the findings of the trial court, Father argues

       that Mother did not meet her burden of proving relocation was not in the

       children’s best interests. Father’s argument, however, misses the mark. This is

       not a situation in which he had primary physical custody of the children and

       sought to relocate. Rather, the parties shared joint physical custody, which

       became impossible and against the best interests of the children upon Father’s

       relocation. Neither party disputed that the custody order had to be modified

       and, indeed, both parties sought modification as a result of the relocation.

       Consequently, the trial court was compelled to consider the totality of the

       evidence to determine which parent was in a better position to serve the

       children’s best interests as custodial parent. This was the burden each parent

       bore in presenting his or her evidence.


[20]   Our review of the record shows that the children are fortunate to have two

       loving, responsible, and capable parents, as well as a step-mother with similar

       qualities. The trial court’s detailed findings, which we will not recount here,

       reveal a thorough analysis of the best interest factors with respect to each

       parent. Ultimately, the trial court concluded: “While there are factors that

       weigh in favor of Father, and other factors that weigh in favor of Mother, the

       Court finds that Father’s deception and lack of communication with Mother on




       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015   Page 9 of 12
       basic co-parenting issues tips the balance of such factors substantially in

       Mother’s favor.”3 Appellant’s Appendix at 42.


[21]   We cannot conclude, consistent with the applicable clear-error standard, that

       there are no facts to support the trial court’s judgment either directly or by

       inference. Reaching a different conclusion from that of the trial court in this

       case would require reweighing the evidence, which we may not do. Applying

       the highly deferential standard of review, we affirm the trial court’s award of

       primary custody to Mother.


                                                             2.


[22]   Father also challenges the trial court’s award of parenting time. With respect to

       parenting time, the trial court concluded: “Father’s parenting time shall be by

       agreement of the parties, but not less than that which is set forth in the Indiana

       Parenting Time Guidelines. The Court does not find that distance should be a




       3
        In addition to finding number 30 addressed above, the trial court made the following findings regarding
       Father’s deception and lack of communication:
             27. In his communications towards Mother, however, Father has been dishonest and refused to
             communicate effectively with Mother on both major and minor co-parenting issues, such as
             whether or not he gave appropriate medication to the children, failing to tell Mother about an
             out-of-state vacation with the children, even instructing the children not to tell Mother about the
             vacation, and failing to communicate with Mother with regard to his marital status.
             28. Father also misapplied the spring break provision of the 2013 guidelines last year, resulting
             in Mother missing her scheduled time.
             29. While the Court cannot find that Father has interfered with Mother’s communications with
             the children, or that Father has disparaged Mother in the presence of the children, the Court
             finds that communications between Mother and Father are not great. In particular, the Court
             finds that Father has refused to communicate with Mother on very basic items which hold
             tremendous importance in the lives of the children and the parties.
       Id. at 36-37. Father does not challenge these findings.

       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015          Page 10 of 12
       factor in determining Father’s parenting time according to the guidelines.” Id.

       at 44.


[23]   Section II(D) of the Guidelines provides for regular parenting time on

       alternating weekends and one midweek visit for a period of up to four hours, as

       well as all scheduled holidays. Section III, however, applies when distance is a

       major factor (i.e., where there is a “significant geographical distance”) affecting

       regular parenting time. In these circumstances, the commentary suggests a

       substantially increased amount of extended parenting time during summer

       vacation, as well as parenting time during the entire spring break each year.


[24]   In arguing that Section III of the Guidelines should apply, Father directs us to

       the trial court’s finding that the distance in this case, approximately 105 miles,


                would cause significant hardship for a non-custodial parent to
                exercise regular parenting time during the week or at times other
                than weekends and holidays. While an occasional mid-week
                visit may be feasible, more frequent visitation could result in
                significant expenses for gasoline, wear and tear on a vehicle, and
                long hours driving for either parent.


       Id. at 35-36. Father asserts that this finding is inconsistent with the court’s

       conclusion that distance should not be a factor.


[25]   While distance is certainly a consideration in this case, we cannot say that it is a

       major factor, such as in cases where the parents live in different states or many

       hours away and cannot even exercise regular weekend parenting time. The

       issue is one of degree. Here, mid-week parenting time will be a hardship on the

       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015   Page 11 of 12
       parties, but clearly not insurmountable.4 On weeks when it is not feasible, the

       parties are tasked with working out a solution for Father to make up this time.

       Accordingly, we conclude that the trial court’s determination regarding

       parenting time was not clearly erroneous.


[26]   Judgment affirmed.


       Riley, J., and Brown, J., concur.




       4
        We note that Father has a flexible work schedule, one that allowed him for more than a year before the
       modification hearing, to regularly travel to the Dillsboro area for the shared custody arrangement, staying
       with the children at his parents’ home on weekdays and taking the children to Noblesville on weekends.

       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-DR-595 | September 22, 2015         Page 12 of 12
