      MEMORANDUM DECISION                                          Aug 04 2015, 9:32 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
      Dorothy Ferguson                                         Katherine A. Harmon
      Anderson, Indiana                                        Jared S. Sunday
                                                               Mallor Grodner LLP
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Bethany Koorsen,                                         August 4, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               48A05-1411-DR-532
              v.                                               Appeal from the Madison Circuit
                                                               Court

      Benjamin Koorsen,                                        The Honorable Jason Childers,
                                                               Judge
      Appellee-Respondent,
                                                               Case No. 48C06-1112-DR-840




      Vaidik, Chief Judge.



                                            Case Summary
[1]   In summer 2014 Bethany Koorsen (“Mother”) filed notice of her intent to

      relocate from Pendleton, Indiana, to Albion, Indiana, ninety minutes away,

      with the parties’ three children. Benjamin Koorsen (“Father”) opposed


      Court of Appeals of Indiana | Memorandum Decision 48A05-1411-DR-532 | August 4, 2015     Page 1 of 11
      Mother’s relocation request. Two weeks later—and before the trial court could

      hold a hearing—Mother moved to Albion with the children. In August, after a

      hearing, the trial court determined that relocating to Albion was not in the

      children’s best interests and denied Mother’s relocation request. On appeal,

      Mother argues that this was error. She also claims that the court erred by

      ordering that Father would have custody of the children if Mother remained in

      Albion. Because we find no error in either respect, we affirm.



                            Facts and Procedural History
[2]   Mother and Father have three children. Since the parties’ divorce in 2012,

      Mother has had primary physical custody of the children, and Father has

      exercised regular, frequent parenting time. The parties share legal custody, and

      Father pays child support. Before these proceedings began, both parties lived in

      Pendleton, Indiana.


[3]   In June 2014 Mother filed notice of her intent to relocate with the children to

      Albion, Indiana—approximately ninety minutes from Pendleton. Father

      opposed the move. Two weeks later, Mother moved to Albion and took the

      children with her.


[4]   At the August 2014 hearing on Mother’s relocation petition, Mother testified

      that she moved to Albion because she got sick, lost her two jobs, and could not

      afford her rent in Pendleton. Tr. p. 10. In Albion, she lived with her mother

      (“maternal grandmother”) in a three-bedroom house. Id. Mother testified that


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      she planned to attend nursing school at the Fort Wayne Ivy Tech campus, and

      maternal grandmother would watch the children when she was in school. Id. at

      11, 32. She did not have a job, but she thought she might get work at a local

      movie theater. Id. at 14. Mother admitted that after moving to Albion, she

      made educational decisions without consulting Father: she enrolled the parties’

      youngest child in a preschool program and the other children in a private

      Lutheran school, although the family was not Lutheran. Id. at 14-18. Because

      Mother could not afford to pay private-school tuition, she had applied for

      tuition vouchers, which had not yet been approved. Id. at 28-29. When asked

      about Father’s ability to see the children if they lived in Albion, Mother

      admitted that she would not be able to transport them to and from Pendleton.

      Id. at 24-25. She also admitted that Father had a great relationship with the

      children and that it would be difficult for the children to see Father much less

      than they were accustomed to. Id. at 25.


[5]   Father testified that before Mother moved, he and his fiancée had the children

      nearly fifty-percent of the time. Id. at 47. The children’s school and doctors

      were near Father’s home in Pendleton, and Father’s family friend had provided

      affordable childcare for the children for years. Id. at 51-52. Father expressed

      concern about maternal grandmother watching the children because she had

      mental-health issues, and he and Mother had previously agreed not to let her

      watch the children. Id. at 50. When asked how the move would affect the

      amount of time he would spend with the children, Father became emotional

      and said that the distance would make it difficult for him to see the children

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      often and that he would miss their daily activities. Id. at 52. He asked the court

      to order Mother to move back to Pendleton or grant him primary physical

      custody of the children. Id. at 56.


[6]   After taking the matter under advisement, the court issued an order denying

      Mother’s request to relocate with the children. The court explained that the

      move to Albion was not in the children’s best interests:

              Both Mother and Father have significant bonded relationships with the
              children. Prior to Mother’s move, Father had parenting time with the
              children almost fifty (50%) percent of the time. However, since
              Mother’s move to Albion[], Father’s parenting time has been
              dramatically reduced due to the significant distance between the
              parties’ respective residences, as well as Father’s work schedule at
              Gordon Food Services. Consequently, Mother’s relocation has made
              it difficult for Father to maintain the relationship he has established
              with the parties’ children.
              Further, [] Mother and the [] children are living with . . . [maternal]
              Grandmother in Albion[.] Thus, when Mother is gone, Grandmother
              watches the children. However, when the parties were married, the
              parties agreed not to allow Grandmother to watch the children due to
              concerns about Grandmother’s mental health. Mother testified that
              Grandmother continues to suffer from depression. As a result,
              allowing Grandmother, who is still experiencing mental-health issues,
              to be the primary caregiver when Mother is gone raises the same
              concerns the parties had while married about the children’s well-being
              when in Grandmother’s care.
              Mother’s relocation to Albion [] has also not improved her standard of
              living or given her access to an opportunity that was not available at
              her prior residence. Mother testified that she is currently unemployed
              but is seeking work. Mother also stated that she is enrolled at Ivy
              Tech. However, with Ivy Tech having campuses located all over
              Indiana, relocation to Albion does not give Mother a unique
              educational opportunity.



      Court of Appeals of Indiana | Memorandum Decision 48A05-1411-DR-532 | August 4, 2015   Page 4 of 11
              Lastly, Mother has violated the parties’ joint custody arrangement
              since moving to Albion [] by enrolling the children in a private
              Christian school without consulting Father. Whether or not the
              distance between the parties has given Mother the impression that she
              can now act unilaterally on behalf of the children, it is clear that
              Mother’s relocation has negatively impacted Father’s ability to
              participate in the decision-making process concerning the children.
      Appellant’s App. p. 10-11. The court concluded by stating that “in the event

      Mother chooses to remain in Albion . . . Father shall be granted physical

      custody of the [] children,” but if Mother “returns to [Pendleton], the current

      order as to custody and parenting time shall remain in effect.” Id. at 11.


[7]   Mother filed a motion to correct errors, which the trial court denied. Mother

      now appeals.



                                 Discussion and Decision
[8]   Mother contends that the trial court erred when it concluded that the relocation

      to Albion was not in the children’s best interests. She also argues that the

      court impermissibly ordered a prospective change of custody to Father.



                                            1. Relocation
[9]   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 § 31-17-2.2-5(a). If the nonrelocating parent objects, the burden is on the

      relocating parent to show that the proposed relocation is made in good faith

      and for a legitimate reason. I.C. § 31-17-2.2-5(c). If the relocating parent meets


      Court of Appeals of Indiana | Memorandum Decision 48A05-1411-DR-532 | August 4, 2015   Page 5 of 11
       that burden, then the burden shifts to the nonrelocating parent to show that the

       proposed relocation is not in the child’s best interests. I.C. § 31-17-2.2-5(d).


[10]   In considering the proposed relocation, the trial court must weigh 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 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.

       Ind. Code § 31-17-2.2-1(b). “Other factors affecting the best interest[s] of the

       child” include 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

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       child’s best interests; and the child’s adjustment to home, school, and the

       community. Ind. Code § 31-17-2-8; see also Baxendale v. Raich, 878 N.E.2d 1252,

       1256 (Ind. 2008).


[11]   The trial court made sua sponte findings in denying Mother’s relocation

       request. Our standard of review in this instance is well settled:

               Pursuant to Indiana Trial Rule 52(A), we do 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 witnesses.
               Where, as here, the findings and conclusions are entered sua sponte,
               the specific findings control only as to the issues they cover, while a
               general judgment standard applies to any issues upon which the trial
               court has not found, and we may affirm a general judgment on any
               theory supported by the evidence adduced at trial.
       Kietzman v. Kietzman, 992 N.E.2d 946, 948 (Ind. Ct. App. 2013) (citations and

       quotations omitted). With this standard in mind, our Supreme Court has

       expressed a preference for granting latitude and deference to our trial judges in

       family-law matters. In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind.

       1993). Recently, it emphasized this principle once again, stating that such

       deference is necessary because of trial judges’ “unique, direct interactions with

       the parties face-to-face.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “Thus

       enabled 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.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1411-DR-532 | August 4, 2015   Page 7 of 11
[12]   Assuming without deciding that Mother met her burden of proving that her

       move to Albion was made for a good-faith and legitimate reason, we focus

       on the trial court’s conclusion that relocation was not in the children’s best

       interests. 1 At the hearing, Mother testified that she relocated to Albion for

       financial reasons: after being ill, Mother lost her jobs and could not afford her

       rent in Pendleton. In Albion, she lived with her mother in a three-bedroom

       house. Mother was not employed, but she planned to attend nursing school at

       a local Ivy Tech campus, and maternal grandmother would watch the children.

       Mother admitted that after moving to Albion, she made educational decisions

       for the children without consulting Father. She also acknowledged that Father

       had a great relationship with the children and that it would be difficult for the

       children to see Father much less than usual.


[13]   In denying Mother’s relocation request, the trial court noted that Mother’s

       relocation “dramatically reduced [Father’s parenting time] due to the significant

       distance between the parties’ respective residences,” which, in turn, threatened

       Father’s relationship with the children. Appellant’s App. p. 10. The court also

       expressed concern about Mother’s plan to leave the children in maternal

       grandmother’s care:

                [W]hen Mother is gone, Grandmother watches the children.
                However, when the parties were married, the parties agreed not to
                allow Grandmother to watch the children due to concerns about




       1
        The trial court issued no findings regarding whether Mother met her burden of proving that the move was
       being made in good faith and for a legitimate reason; the court simply discussed the children’s best interests.

       Court of Appeals of Indiana | Memorandum Decision 48A05-1411-DR-532 | August 4, 2015                Page 8 of 11
                Grandmother’s mental health. Mother testified that Grandmother
                continues to suffer from depression. As a result, allowing
                Grandmother, who is still experiencing mental-health issues, to be the
                primary caregiver when Mother is gone raises the same concerns the
                parties had while married about the children’s well-being when in
                Grandmother’s care.
       Id. at 11. Finally, the court emphasized Mother’s recent unilateral decision-

       making:

                Mother has violated the parties’ joint custody arrangement since
                moving to Albion [] by enrolling the children in a private Christian
                school without consulting Father. Whether or not the distance
                between the parties has given Mother the impression that she can now
                act unilaterally on behalf of the children, it is clear that Mother’s
                relocation has negatively impacted Father’s ability to participate in the
                decision-making process concerning the children.
       Id.


[14]   The trial court heard the parties’ testimony and examined the evidence,

       ultimately finding that relocation to Albion was not in the children’s best

       interests. In light of the evidence set forth above, we cannot say that this was

       error.


                                           2. Custody Order
[15]   Mother also argues that the trial court impermissibly ordered a prospective

       change of custody to Father. We disagree.


[16]   An automatic, future custody modification order violates Indiana’s custody-

       modification statute. Bojrab v. Bojrab, 810 N.E.2d 1008, 1012 (Ind. 2004).

       Specifically, language ordering that custody shall be automatically modified in


       Court of Appeals of Indiana | Memorandum Decision 48A05-1411-DR-532 | August 4, 2015   Page 9 of 11
       the event of one parent’s relocation “is inconsistent with the requirements of the

       custody modification statute[.]” Id. By contrast, language declaring that a

       present award of custody is conditioned upon the continuation of a child’s place

       of residence is proper as “a determination of present custody under carefully

       designated conditions.” Id. As the Court explained in Bojrab:

                There is a significant difference between the two phrases. One
                purports to automatically change custody upon the happening of a
                future event; the other declares that the present award of custody is
                conditioned upon the continuation of the children’s place of residence.
                While the automatic future custody modification violates the custody
                modification statute, the conditional determination of present custody
                does not.
       Id.


[17]   In the order at issue, the court stated that “in the event Mother chooses to

       remain in Albion . . . Father shall be granted physical custody of the []

       children,” but if Mother “returns to [Pendleton], the current order as to custody

       and parenting time shall remain in effect.” Appellant’s App. p. 11. This order

       was a determination of present custody under carefully designated conditions in

       that Mother had already relocated to Albion; thus, the order did not hinge on

       any possible future event. 2 Rather, the court’s order is a conditional




       2
         For this reason, Myers v. Myers, 13 N.E.3d 478 (Ind. Ct. App. 2014), upon which Mother relies, is
       distinguishable. In Myers, the mother wished to relocate to Texas with one of the parties’ children, but the
       trial court denied her request. There, the court ordered “that if [Mother] still intends to relocate to Texas [,] [
       ] custody of [H.M.] shall be modified and awarded to [Father]. . . .” 13 N.E.3d at 486. Thus, the court’s order
       operated to automatically modify custody upon the happening of a future event—Mother’s relocation to
       Texas. Here, Mother has already relocated; the trial court’s order is simply a conditional determination of
       present custody.

       Court of Appeals of Indiana | Memorandum Decision 48A05-1411-DR-532 | August 4, 2015                 Page 10 of 11
       determination of present custody: if Mother remains in Albion, Father will have

       physical custody of the children. We find no error here.


[18]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




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