MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Aug 24 2017, 5:52 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Nicholas J. Hursh                                        Elizabeth A. Deckard
Shambaugh, Kast, Beck & Williams,                        Bloom Gates Shipman &
LLP                                                      Whiteleather, LLP
Fort Wayne, Indiana                                      Columbia City, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jill I. Lane,                                            August 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         92A03-1702-DR-399
        v.                                               Appeal from the Whitley Circuit
                                                         Court
Michael P. Lane,                                         The Honorable Matthew
Appellee-Plaintiff.                                      Rentschler, Judge
                                                         Trial Court Cause No.
                                                         92C01-1603-DR-123



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017        Page 1 of 11
                                          Case Summary
[1]   Appellant-Petitioner Jill I. Lane (“Mother”) and Appellee-Respondent Michael

      Lane (“Father”) are the parents of minor child G.M.R.L. Mother filed a notice

      of intent to relocate from Indiana to Connecticut with G.M.R.L. in July of

      2016. The trial court denied Mother’s request to relocate with the child

      following an evidentiary hearing. Mother argues that the trial court’s findings

      of fact, conclusions of law, and order are clearly erroneous. Upon review, we

      conclude that the trial court did not clearly err in finding that relocation was not

      in the child’s best interest. Accordingly, we affirm.



                            Facts and Procedural History
[2]   Mother and Father were married on June 13, 2009. Mother and Father have

      one child together, G.M.R.L., who was born on July 22, 2010. The couple

      separated in January of 2016 and filed a petition for dissolution in March of

      2016. On May 16, 2016, the trial court dissolved the parties’ marriage by

      Decree of Dissolution approving the parties’ Settlement Agreement. Pursuant

      to the order, Mother and Father received joint legal custody of G.M.R.L. with

      Mother being the primary custodial parent. Father received parenting time

      with G.M.R.L. pursuant to the Indiana Parenting Time Guidelines.


[3]   On July 15, 2016, Mother filed a notice of intent to relocate to Winsted,

      Connecticut. Father filed his objection to Mother’s relocation request, an

      emergency request for a temporary restraining order, and a motion for


      Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 2 of 11
      modification of custody on July 19, 2016. That same day, the trial court

      entered a temporary restraining order restraining the relocation of G.M.R.L.

      and set the matter for hearing on August 3, 2016. On August 1, 2016, the

      parties filed a joint stipulation to vacate the August 3, 2016, hearing and reset

      the hearing for November 9, 2016. On November 9, 2016, the trial court

      rescheduled the hearing to January 11, 2017.


[4]   On January 11, 2017, a hearing was held on all pending motions. Mother filed

      a trial brief in support of her position, and Father filed a motion for findings of

      fact and conclusions of law. At the conclusion of the hearing, the trial court

      ordered the parties to submit a proposed order regarding findings of fact and

      conclusions of law.


[5]   On January 27, 2017, the trial court issued its order with findings of fact and

      conclusions of law on Mother’s petition to relocate. The order included the

      following findings of fact:

              4. Mother seeks to relocate to Connecticut so she can join her
              fiancé, Jeffery Walker. Mother also cites increased living space
              and better financial opportunities in Connecticut as reasons for
              the requested relocation.

              5. Mother and Mr. Walker met on-line in January 2016 while
              playing a computer game. They met in person for the first time
              in April 2016, and were engaged in June 2016. Mother and Mr.
              Walker have a tentative wedding date in, June 2017.

              6. Mother and [G.M.R.L.] live alone in their current home which
              has, at times, housed as many as three (3) other people living
              with Mother and [G.M.R.L.].

      Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 3 of 11
        7. Mother has not undertaken any efforts to look for homes with
        more living space in Whitley County, or the surrounding area.

        8. Mother has obtained a position with Northwest CT Realty in
        Connecticut and has been promised commission of 65% at this
        new job compared to 60% with her current employer, Orizon
        Real Estate in Columbia City, Indiana. Because the cost of living
        is higher in Connecticut, home prices are higher there than in
        Columbia City, Indiana. Mother speculates that she will have a
        higher income in Connecticut.

        9. Mother has no client base in Connecticut and no ties to the
        area excepting Mr. Walker. Mother presented no evidence that
        she has sought or been unable to find better employment terms in
        Indiana.

        10. Mr. Walker lives in Winsted, Connecticut and is employed as
        an electrician with Horton Electrical Services, LLC in Canton,
        Connecticut. He is a life-long Connecticut resident.

        11. Mr. Walker is opening his home to Mother and [G.M.R.L.].
        The home is sufficiently spacious to accommodate Mother and
        [G.M.R.L.]. Mother considers Mr. Walker’s home an upgrade
        from her Columbia City home.

        12. Mr. Walker has no minor children in Connecticut and
        testified that he will not relocate to Indiana because he expects an
        accompanying pay decrease. Mr. Walker’s gross income was
        $58,747.28 in 2015. After brief inquiry into Indiana job
        prospects, Mr. Walker remains under the impression that he
        would receive an inferior salary for an Indiana job similar to his
        job in Connecticut.

        13. Mother and [G.M.R.L.] have no family in Connecticut, but
        have become acquainted with some of Mr. Walker’s Connecticut
        friends.

        14. Mother testified that she will not relocate if the Court does
        not permit [G.M.R.L.] to relocate. There is uncertainty about

Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 4 of 11
        the logistics of Mother and Mr. Walker’s relationship if Mother
        does not move to Connecticut.

        15. [G.M.R.L.] is presently enrolled in first grade at Little Turtle
        Elementary School in Columbia City, Indiana and is doing well
        in school.

        16. [G.M.R.L.] has special needs. He has been diagnosed with
        Severe Receptive Delay, Severe Expressive Language Delay, and
        Autism Spectrum Disorder. Both Mother and Father are
        cognizant of these needs and provide loving and appropriate
        care. [G.M.R.L.] participated in services with First Steps and
        Functional Oral and Motor Feeding Concepts LLC in Fort
        Wayne in the past. He is not receiving services at this time.
        Father has taken steps to have [G.M.R.L.] evaluated with
        Hopebridge in Fort Wayne, Indiana.

        17. Winsted, Connecticut is over 700 miles and an approximate
        11 hour drive from Columbia City, Indiana.

        18. Father opposes [G.M.R.L.’s] relocation because he would
        lose regular contact with him, as would both sets of
        grandparents, and other relatives on both sides of the family.
        Mother’s family and Father’s family reside primarily in Indiana.
        [G.M.R.L.’s] half-brother is attending college at Trine
        University, in Indiana. Father has the ability and desire to have
        primary physical custody of [G.M.R.L.] if [G.M.R.L.’s]
        relocation to Connecticut is the alternative.

        19. Father will experience hardship and expense to exercise
        parenting time with [G.M.R.L.] should relocation be granted.
        Mother proposed that Father exercise parenting time with
        [G.M.R.L.] for approximately seven weeks each summer, one
        week of parenting time each Christmas Break, and every Spring
        Break, as well as one weekend every quarter. Mother has
        requested that Mother and Father share transportation costs
        equally for all parenting time with Father, except the one
        weekend per quarter for which Mother will be responsible.

Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 5 of 11
              20. Mother’s plan would cause [G.M.R.L.] and his Father and
              the rest of [G.M.R.L.’s] Indiana family to be physically apart for
              lengthy stretches of time. Skype or Facetime contact is possible
              during these absences, but is not a substitute for physical
              presence.

              21. Father would be required to incur considerable costs in
              providing for any of the transportation expenses to exercise his
              parenting time with [G.M.R.L.].

              22. Father currently resides with his mother ([G.M.R.L.’s]
              grandmother), Rachel Lane. Rachel assists Father in providing
              care for [G.M.R.L.], and has cared for [G.M.R.L.] when Mother
              had work obligations when [G.M.R.L.] was in her care.

              23. Father’s family members testified that the family consistently
              spends time together throughout the year, with [G.M.R.L.]
              spending time with his Father’s side of the family approximately
              twice per month, and not just during the summer and holidays.
              In contrast, Mother’s parents travel and would see [G.M.R.L.]
              just as frequently if he were based in Connecticut or Indiana.

      Appellant’s App. Vol II. pp. 27-29. The trial court denied Mother’s

      motion to relocate G.M.R.L. to Winsted, Connecticut, ordered the

      parties to continue with joint legal custody, did not modify Father’s

      parenting time with G.M.R.L., and did not award either party attorney

      fees.



                                 Discussion and Decision
[6]   Mother argues that the trial court’s findings of fact, conclusions of law, and

      order were clearly erroneous and not supported by the evidence. We note at

      the outset that because there was a request for the trial court to enter findings of
      Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 6 of 11
      fact and conclusions of law, we must determine whether the trial court’s

      findings are sufficient to support the judgment. Breeden v. Breeden, 678 N.E.2d

      423, 425 (Ind. Ct. App. 1997).

              In reviewing the judgment, we must first determine whether the
              evidence supports the findings and second, whether the findings
              support the judgment. The judgment will be reversed only when
              clearly erroneous, i.e., when the judgment is unsupported by the
              findings of fact and conclusions entered on the findings.
              Findings of fact are clearly erroneous when the record lacks any
              evidence or reasonable inferences from the evidence to support
              them. To determine whether the findings or judgment are clearly
              erroneous, we consider only the evidence favorable to the
              judgment and all reasonable inferences flowing therefrom, and
              we will not reweigh the evidence or assess witness credibility.


      Id. (citations omitted).


[7]   “In addition [...], our supreme court has expressed a ‘preference for granting

      latitude and deference to our trial judges in family law matters.’” In re Paternity

      of Ba.S., 911 N.E.2d 1252, 1254 (Ind. Ct. App. 2009) (quoting In re Marriage of

      Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). “Our supreme court

      [emphasized] this principle, stating that we afford such deference because of

      trial judges’ ‘unique, direct interactions with the parties face-to-face.’” H.H. v.

      A.A., 3 N.E.3d 30, 34 (Ind. Ct. App. 2014) (quoting 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. Consequently,

      Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 7 of 11
      we “will not substitute our own judgment if any evidence or legitimate

      inferences support the trial court’s judgment. The concern for finality in custody

      matters reinforces this doctrine.” Baxendale v. Raich, 878 N.E.2d 1252, 1257-58

      (Ind. 2008).


                   I. Denial of Mother’s Request to Relocate
[8]   Pursuant to Indiana Code section 31-17-2.2-1(a),


              [a] relocating individual must file a notice of the intent to move
              with the clerk of the court that: (1) issued the custody order or
              parenting time order; or (2) ... has jurisdiction over the legal
              proceedings concerning the custody of or parenting time with a
              child; and send a copy of the notice to any nonrelocating
              individual.


              A nonrelocating parent may object to relocation in either of two
              ways: by filing a motion to modify the custody order or by filing,
              within sixty days of receipt of the notice, a motion to prevent
              relocation of the child. Baxendale, 878 N.E.2d at 1256 n.5; see
              Ind. Code § 31-17-2.2-5(a) (regarding motion to prevent
              relocation). Upon request of either party, the trial court shall hold
              a full evidentiary hearing to grant or deny a motion to prevent
              relocation of the child. Ind. Code § 31-17-2.2-5(b). “The
              relocating individual has the burden of proof that the proposed
              relocation is made in good faith and for a legitimate reason.”
              Ind. Code § 31-17-2.2-5(c). If the relocating parent meets that
              burden, “the burden shifts to the nonrelocating parent to show
              that the proposed relocation is not in the best interest of the
              child.” Ind. Code § 31-17-2.2-5(d).


      T.L. v. J.L., 950 N.E.2d 779, 783 (Ind. Ct. App. 2011) (quoting M.S. v.

      C.S., 938 N.E.2d 278, 281-82 (Ind. Ct. App. 2010).

      Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 8 of 11
[9]   In determining whether to permit a relocation, the trial court shall take into

      account the following:


              (1) The distance involved in the proposed change of residence.

              (2) The hardship and expense involved for the nonrelocating
              individual to exercise parenting time....

              (3) The feasibility of preserving the relationship between the
              nonrelocating individual and the child through suitable parenting
              time ... 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. “The ‘other factors affecting the best interest of the

      child’ include, by implication, the factors set forth for custody determinations

      and modifications under Indiana Code section 31-17-2-8.” T.L., 950 N.E.2d at

      785 (citing Baxendale, 878 N.E.2d at 1257). These factors include:


              (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

      Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 9 of 11
               fourteen (14) years of age; (4) the interaction and
               interrelationship of the child with the child’s parent or parents,
               the child’s sibling, and any other person who may significantly
               affect the child’s best interests; (5) the child’s adjustment to the
               child’s home, school, and community; (6) the mental and
               physical health of all individuals involved; (7) evidence of a
               pattern of domestic or family violence by either parent; and (8)
               evidence that the child has been cared for by a de facto custodian.


       Ind. Code § 31-17-2-8.


[10]   Mother claims that the trial court erroneously determined that she failed to

       prove that her relocation request was made for a legitimate reason. Specifically,

       Mother challenges the trial court’s determination that her desire to move to

       Connecticut to join her fiancé, move into his home, and work at a realty

       company did not constitute legitimate reasons for relocation of Mother and

       G.M.R.L. from Indiana to Connecticut.


[11]   Even assuming, arguendo, that Mother did have a legitimate reason for

       requesting to relocate with G.M.R.L., it was not clearly erroneous for the trial

       court to conclude that relocation was not in the child’s best interest. With

       regards to the best interest of the child, the trial court found that:

               4. Even if this Court were to declare that Mother was relocating
               for a reason that had legitimacy, the court would be constrained
               to act in the best interests of the child. It is in [G.M.R.L.]’s best
               interest to remain in Indiana where he has regular contact with
               both parents and his extended family, and to continue attending
               Little Turtle Elementary School where he is doing well.


       Appellant’s App. p. 31. In addition,
       Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 10 of 11
               16. [G.M.R.L.] has special needs. He has been diagnosed with
               Severe Receptive Delay, Severe Expressive Language Delay, and
               Autism Spectrum Disorder. Both Mother and Father are
               cognizant of these needs and provide loving and appropriate
               care. [G.M.R.L.] participated in services with First Steps and
               Functional Oral and Motor Feeding Concepts LLC in Fort
               Wayne in the past. He is not receiving services at this time.
               Father has taken steps to have [G.M.R.L.] evaluated with
               Hopebridge in Fort Wayne, Indiana.


       Appellant’s App. p. 28. G.M.R.L. has also received services and testing from

       Riley Children’s hospital in Indianapolis, Indiana. Tr. p. 17. Furthermore,

       due to his special needs, routine and structure are important. Tr. p. 20. “He

       doesn’t like it when things are . . . changed too much.” Tr. p. 20. According to

       Mother, “it’s definitely a big priority to make sure he knows [what is] going on

       and to keep it the same for him.” Tr. p. 20. Given G.M.R.L.’s special needs,

       his relationship with Father and Father’s family, his need for routine and

       structure, his school, and his medical providers, the trial court was not clearly

       erroneous when it concluded that remaining in Indiana was in G.M.R.L.’s best

       interest. Mother’s claim that the trial court should have given more weight to

       other various facts is merely an invitation to reweigh the evidence which we

       will not do. See Breeden v. Breeden, 678 N.E.2d at 425.



[12]   The judgment of the trial court is affirmed.


       Brown, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 92A03-1702-DR-399 | August 24, 2017   Page 11 of 11
