                                                                              FILED
                                                                          Mar 11 2019, 6:14 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Trenna S. Parker                                           Rodney T. Sarkovics
      Trenna S. Parker Law Office, P.C.                          Sarkovics Law
      Noblesville, Indiana                                       Carmel, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In re the Paternity of W.R.H.                              March 11, 2019

      Casie N. Wheeler,                                          Court of Appeals Case No.
                                                                 18A-JP-1770
      Appellant-Petitioner,
                                                                 Appeal from the Hamilton
              v.                                                 Superior Court
                                                                 The Honorable Jonathan M.
      William Jesse Hinshaw,                                     Brown, Judge
                                                                 Trial Court Cause No.
      Appellee-Respondent
                                                                 29D02-1506-JP-839



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Casie N. Wheeler (“Mother”) and William Jesse Hinshaw (“Father”) shared

      joint legal custody of their young son (i.e., authority and responsibility for the

      major decisions concerning their son’s upbringing, including his education,

      health care, and religious training). However, after Mother filed a notice of

      Court of Appeals of Indiana | Opinion 18A-JP-1770| March 11, 2019                           Page 1 of 12
      intent to relocate and Father objected, the trial court issued an order that,

      among other things, awarded sole legal custody to Father. Mother appeals,

      arguing that the parties did not raise the issue of legal custody and that the

      modification was therefore improper. Father acknowledges that he did not

      expressly request a change in legal custody but contends that, under Indiana’s

      parental-relocation statutes, Ind. Code ch. 31-17-2.2, legal custody is placed at

      issue any time one parent files a notice of intent to relocate and the other parent

      objects. We disagree with Father’s reading of the statutes, and because he did

      not otherwise put Mother on notice that he was seeking a change in legal

      custody, we reverse the modification.


                                Facts and Procedural History
[2]   Mother and Father are the parents of W.H., who was born in March 2014. As

      of July 2017, Mother had primary physical custody of W.H., with Father

      exercising significant parenting time and paying child support, and the parties

      shared joint legal custody. Mother was living in Indianapolis, and Father was

      living in Westfield. That month, Mother filed a notice of intent to relocate to

      New Haven, Indiana, “for a teaching position with a Fort Wayne ballet

      company and to pursue her undergraduate degree at Indiana University –

      Purdue University Fort Wayne.” Appellant’s App. Vol. II p. 40. She

      acknowledged that the move would “cause a change in the current parenting

      time as the increased distance will affect Father’s currently ordered parenting

      time.” Id. at 40-41.



      Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019        Page 2 of 12
[3]   Father immediately objected to the proposed relocation, asserting that it would

      “substantially interfere with his parenting time he is currently exercising.” Id. at

      43. He asked the trial court to set the matter for a hearing, to prohibit Mother

      from relocating while the matter was pending, and to ultimately bar the

      relocation. Father also asked the court to modify child support and to award

      him “physical custody” “[s]hould Mother decide to move to Ft. Wayne[.]” Id.

      at 44.


[4]   The trial court set the matter for a hearing. A few days before the hearing,

      Father filed a motion for rule to show cause. He alleged that Mother, without

      talking to him, had enrolled W.H. in a school in New Haven. Father asserted

      that this was a breach of the joint-legal-custody arrangement and asked the

      court to hold her in contempt.


[5]   At the hearing, the parties disputed whether W.H. had actually been “enrolled”

      in the school in New Haven. They also presented extensive testimony and

      exhibits regarding the proposed relocation. Father’s primary contention was

      that Mother’s reason for wanting to move to New Haven was not school or

      work but rather to live with her boyfriend.


[6]   In January 2018, the trial court issued its order. Believing that Mother would

      be relocating to New Haven regardless of the court’s decision, the court (1)

      denied Mother’s request to relocate W.H., (2) awarded primary physical

      custody to Father, (3) awarded sole legal custody to Father, (4) modified child




      Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019        Page 3 of 12
      support, and (5) found Mother in contempt of the previous legal-custody order

      and ordered her to pay some of Father’s attorney’s fees.


[7]   Mother then filed a motion to correct error. She did not challenge the denial of

      her request to relocate W.H. to New Haven, but she argued that the rest of the

      rulings were incorrect. Relevant to this appeal, Mother asserted that the parties

      did not ask the trial court to modify legal custody and that the court therefore

      erred by doing so. The trial court granted Mother’s motion in part, including

      setting aside the finding of contempt, but it left in place the modification of legal

      custody. The court concluded that “a change of custody was requested and

      plead by both parties.” Appellant’s App. Vol. III p. 30.


[8]   Mother now appeals.



                                  Discussion and Decision
[9]   Mother does not appeal the trial court’s rulings regarding relocation, physical

      custody, or child support. She challenges only the trial court’s modification of

      legal custody. Specifically, she renews her argument that Father never asked

      the trial court to award him sole legal custody, that the issue of legal custody

      was not otherwise placed at issue, and that the trial court therefore erred by

      modifying legal custody. As we made clear in Bailey v. Bailey, “Longstanding

      Indiana law has prohibited trial courts from sua sponte ordering a change of

      custody.” 7 N.E.3d 340, 344 (Ind. Ct. App. 2014). The issue is one of notice:




      Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019         Page 4 of 12
               [W]hen such an important issue as the custody of children is
               involved, a modification generally can be ordered only after a
               party has filed a petition requesting such a modification, the
               other party has notice of the filing, and a proper evidentiary
               hearing is held at which both parties may be heard and the trial
               court fully apprised of all necessary information regarding change
               of circumstances and a child’s best interests before deciding
               whether a modification should be ordered.


       Id.


[10]   For his part, Father does not dispute that the modification of custody is

       improper if the issue is not raised by the parties, nor does he dispute that he

       never expressly asked the trial court, in either his filings with the court or at the

       hearing, to modify legal custody. Rather, he argues that, pursuant to Indiana’s

       relocation statutes, Ind. Code ch. 31-17-2.2, legal custody was “automatically at

       issue” once he requested a hearing regarding Mother’s notice of intent to

       relocate. Appellee’s Br. p. 6. Mother disagrees with Father’s reading of the

       relocation statutes. Statutory construction is a matter of law that we review de

       novo. Edmonds v. State, 100 N.E.3d 258, 261 (Ind. 2018).


[11]   Indiana Code section 31-17-2.2-1(a) provides that a “relocating individual”—a

       person who has or is seeking custody of a child or parenting time with a child

       and who intends to move their principal residence, Ind. Code § 31-9-2-107.5—

       “must file a notice of the intent to move[.]” Here, Mother filed such a notice,

       and Father responded with an objection in which he requested that the court set

       a hearing. In support of his argument that legal custody was at issue as soon as

       he requested a hearing, Father cites Indiana Code section 31-17-2.2-1(b), which

       Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019          Page 5 of 12
       provides, in part, “Upon motion of a party, the court shall set the matter for a

       hearing to review and modify, if appropriate, a custody order, parenting time

       order, grandparent visitation order, or child support order.” According to

       Father, this provision means that both physical and legal custody are at issue

       and subject to modification any time a parent requests a hearing regarding the

       other parent’s notice of intent to relocate, regardless of the reason for, or the

       content of, the request for a hearing. Appellee’s Br. p. 9 (“[T]he mere filing of a

       request for hearing after the initiating party files a notice of intent to relocate

       places custody at issue, physical and/or legal custody.”).


[12]   We think Father misreads the opening phrase “Upon motion of a party[.]”

       Father apparently believes that the “motion” referred to in that phrase is a

       motion or request for a hearing, so that “the court shall set the matter for a

       hearing to review and modify, if appropriate, a custody order” any time a

       parent asks for a hearing on another parent’s notice of intent to relocate. See id.

       at 11 (Father arguing that “the statute specifically says that after a party files a

       motion for hearing that a modification of custody is a potential consequence or

       result”). But the statute does not contemplate a generic “motion” or “request”

       for a hearing regarding a proposed relocation. As our Supreme Court has

       explained, what Section 31-17-2.2-1(b) contemplates, and the “motion” to

       which it refers, is a motion to modify an existing custody order (or parenting

       time order, or grandparent visitation order, or child support order). See




       Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019           Page 6 of 12
       Baxendale v. Raich, 878 N.E.2d 1252, 1256 n.5 (Ind. 2008).1 So, for example, if a

       parent files a motion to modify the existing physical-custody order, then “the

       court shall set the matter for a hearing to review and modify, if appropriate, [the

       physical-custody order.]” If a parent files a motion to modify the existing legal-

       custody order, then “the court shall set the matter for a hearing to review and

       modify, if appropriate, [the legal-custody order.]” If, on the other hand, a

       parent files only a motion to modify the existing child-support order, then “the

       court shall set the matter for a hearing to review and modify, if appropriate, [the

       child-support order]” without concerning itself with physical or legal custody.

       In short, the requests of the parties frame the issues for the hearing, which may

       or may not include the issue of legal custody.


[13]   To be sure, physical custody and/or parenting time will be at issue virtually any

       time a parent is looking to move a significant distance. But the same is not

       necessarily true of legal custody. Physical distance does not prevent parents,

       especially given today’s technology, from communicating effectively about

       education, health care, religion, and other aspects of a child’s upbringing. And

       for this reason a parent who wants a change in legal custody must ask for one.

       If Father had done so in this case, it is entirely possible that Mother would have




       1
        A nonrelocating parent also has the option of filing a motion to simply prevent the relocation pursuant to
       Indiana Code section 31-17-2.2-5(a), without seeking any sort of modification. See Baxendale, 878 N.E.2d at
       1256 n.5.

       Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019                              Page 7 of 12
       presented significant additional evidence relevant to the specific issue of legal

       custody.


[14]   Instead, after Mother filed her notice of intent to relocate, Father filed a

       “Verified Objection to Petitioner’s Notice of Intent to Relocate and Petition to

       Modify Child Support.” In that filing, Father asked the trial court to (1) modify

       child support, (2) prohibit Mother from relocating the child while the matter

       was pending, (3) deny Mother’s proposed relocation, (4) award him “physical

       custody” “[s]hould Mother decide to move to Ft. Wayne,” and (5) “set this

       matter for hearing[.]” Appellant’s App. Vol. II pp. 43-44. Father specifically

       requested a change in “physical custody,” thereby putting Mother on notice

       that physical custody would be at issue at the hearing. If he also wanted a

       change in legal custody, he should have said so, either in his filing or at the

       subsequent hearing. He did not. The term “legal custody” was used at the

       hearing, but only in the context of Father’s request to have Mother found in

       contempt for allegedly violating the existing legal-custody order. And while

       evidence was presented that would have been relevant if legal custody had been

       placed at issue (e.g., evidence of the parties’ communication), that evidence was

       separately relevant to the main issue before the court: whether to allow Mother

       to move W.H. to New Haven. As such, it cannot be said that the issue of legal

       custody was tried by consent pursuant to Indiana Trial Rule 15(B), see Bailey, 7

       N.E.3d at 344, and Father makes no such argument on appeal. For these

       reasons, and because Indiana Code section 31-17-2.2-1 does not place legal

       custody at issue any time there is a hearing regarding a proposed relocation,


       Court of Appeals of Indiana | Opinion 18A-JP-1770| March 11, 2019          Page 8 of 12
       legal custody was not at issue at the hearing, and the trial court erred by

       ordering the modification.


[15]   Reversed.


       Mathias, J., concurs.
       Crone, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019        Page 9 of 12
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       In Re the Paternity of: W.R.H.                             Court of Appeals Case No.
                                                                  18A-JP-1770
       Casie N. Wheeler,
       Appellant-Petitioner,

               v.

       William Jesse Hinshaw,
       Appellee-Respondent



       Crone, Judge, dissenting.


[16]   I respectfully disagree with the majority’s interpretation of Indiana Code

       Section 31-17-2.2-1(b). It is important to recognize not only what a statute says,

       but also what it does not say. In re Estate of Jackson, 938 N.E.2d 1200, 1207

       (Ind. Ct. App. 2010), trans. denied (2011). The statute does not require the party

       who moves for a hearing to “frame[] the issue(s) for the hearing,” slip op. at 7,

       nor does it limit the issues that a trial court may adjudicate at the hearing.

       Indeed, the statute authorizes a court to modify a custody order, a parenting

       time order, or a child support order “if appropriate[.]” Ind. Code § 31-17-2.2-

       1(b). A court must “take into account” the same six considerations with respect

       to all of those orders, and all of those considerations “affect[] the best interest of




       Court of Appeals of Indiana | Opinion 18A-JP-1770| March 11, 2019                      Page 10 of 12
the child.”2 Id. In sum, the statute itself puts parties on notice that custody

(both legal and physical), parenting time, and child support are always at issue

whenever a court holds a hearing on a party’s notice of intent to move. Unless

the effects of a party’s relocation are de minimis, 3 a relocation will upset the

existing balance of custody, parenting time, and child support arrangements to

some degree; the legislature has given trial courts the discretion to rebalance




2
 The sixth consideration is “[o]ther factors affecting the best interest of the child.” Ind. Code § 31-17-2.2-
1(b)(6). In D.C. v. J.A.C., our supreme court explained that those other factors
         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. I.C. § 31-17-2-8; see also Baxendale
         v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). 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.
         See Baxendale, 878 N.E.2d at 1257.
977 N.E.2d 951, 954 (Ind. 2012) (footnote omitted). Both D.C. and Baxendale involved modification of
physical custody. In Milcherska v. Hoerstman, another panel of this Court stated,
         We note that when one parent is relocating, it is not necessary for a court to find a substantial
         change in one of the Section 31-17-2-8 factors before modifying physical custody. D.C., 977
         N.E.2d at 954. However, our courts have not similarly waived the “substantial change”
         requirement for legal custody determinations in the event of a parent’s relocation.
56 N.E.3d 634, 641 n.3 (Ind. Ct. App. 2016). Accordingly, the Milcherska panel stated, “When considering a
modification from joint legal custody to sole legal custody, we must determine whether there has been a
substantial change in one or more of the factors listed in Indiana Code section 31-17-2-15, in addition to
considering any substantial change to the Section 8 factors, as is typically necessary for physical custody
modification.” Id. at 641 (citing Julie C. v. Andrew C., 924 N.E.2d 1249, 1259 (Ind. Ct. App. 2010) (citing
Carmichael v. Siegel, 754 N.E.2d 619, 635 n.7 (Ind. Ct. App. 2001)). Indiana Code Section 31-17-2-15 lists
factors to be considered in awarding joint legal custody, including whether the parties “have agreed to an
award of joint legal custody[,]” “the fitness and suitability of each of the persons awarded joint custody[,]”
“whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing
the child’s welfare[,]” and “whether the persons awarded joint custody: (A) live in close proximity to each
other; and (B) plan to continue to do so[.]” In its original order in this case, the trial court considered the
Section 8 factors but did not make a specific finding regarding substantial changes, and it did not mention
Indiana Code Section 31-17-2-15 at all. Citing Baxendale and Milcherska, Mother contends that this was error.
I disagree. As noted in Baxendale (which, like Indiana Code Section 31-17-2.2-1(b), does not distinguish
between legal and physical custody), Indiana Code Chapter 2.2 “is a self-contained chapter and does not by
its terms refer to the general change of custody provisions” in Section 8. 878 N.E.2d at 1257. Likewise, it
does not refer to Indiana Code Section 31-17-2-15.
3
    As an example, Father filed a notice of intent to relocate within his apartment complex. Tr. Vol. 3 at 41.


Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019                                   Page 11 of 12
       them “if appropriate,” based on the evidence presented at the hearing and

       unfettered by the contents of a party’s motion for the hearing.


[17]   In this case, although Father’s verified objection to Mother’s notice of intent to

       relocate specifically requested only a change in physical custody if Mother

       decided to move to Fort Wayne, the trial court heard evidence regarding

       “parental alienation behaviors by Mother[,]” her failure to communicate with

       Father about W.H.’s daycare, her frequent residence changes, her “lack of

       stability in employment,” and her failure to follow the trial court’s orders, all of

       which negatively impacted the joint legal custody arrangement. Appealed

       Order at 4, 5. The trial court found that modifying that arrangement would be

       in W.H.’s best interest, a determination that Mother did not challenge in her

       motion to correct error and does not challenge on appeal. Because the child’s

       best interest is the touchstone of a custody determination, and because Mother

       was aware that the issue of custody would be litigated at the hearing, I would

       affirm the trial court’s award of sole legal custody to Father. In my view,

       reversing for possible relitigation of this issue would be a waste of the parties’

       and the trial court’s resources.




       Court of Appeals of Indiana | Opinion 18A-JP-1770 | March 11, 2019        Page 12 of 12
