MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              May 10 2019, 8:56 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Valerie D. Johnson                                       Ryan M. Spahr
Weeden Law, LLC                                          Spahr Law Office, LLC
Indianapolis, Indiana                                    Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
Dereka L. Morris,                                        May 10, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-JP-2184
        v.                                               Appeal from the Marion Circuit
                                                         Court
Jermaine T. Moore,                                       The Honorable Sheryl L. Lynch,
Appellee-Respondent.                                     Judge
                                                         The Honorable Marie L. Kern,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49C01-0809-JP-44247



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-2184 | May 10, 2019                    Page 1 of 9
[1]   Dereka Morris (“Mother”) appeals the denial of her Notice of Intent to

      Relocate from the Marion Circuit Court on the sole basis that Jermaine Moore

      (“Father”) failed to object within sixty days of receiving the Notice.


[2]   We affirm.


                                  Facts and Procedural History

[3]   On November 17, 2008, Mother and Father established paternity of their minor

      child. On July 6, 2017, Mother, acting pro se, filed a Notice of Intent to

      Relocate.1 She requested to relocate herself and the child to Florida. On

      September 5, 2017, Mother filed a Motion to Modify Parenting Time. The next

      day, on September 6, 2017, Father filed a “Verified Objection to Petitioner’s

      Relocation with the Minor Child.” Appellant’s App. pp. 43–44. On October 12,

      2017, Mother filed a Motion to Dismiss Father’s objection, arguing that Father

      did not respond within the sixty-day time frame outlined in Indiana Code

      section 31-17-2.2-5, and because he missed the deadline, she was free to relocate

      to Florida with the child. On November 7, 2017, the trial court entered an order

      that the child could not be relocated pending final hearing and order, that the

      parties go to mediation, and set a final hearing for January 9, 2018. This

      January hearing was continued, and on May 2, 2018, Father filed a petition

      requesting modification of custody should Mother relocate to Florida. The




      1
       Mother had twice previously filed a Notice of Intent to Relocate, initially on March 29, 2014 and on March
      31, 2015, both of which indicated an intention to relocate to Florida. Father objected to both of these
      previous notices.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2184 | May 10, 2019                    Page 2 of 9
      court heard all pending issues on that same day. Mother maintained throughout

      the proceedings that she would not move to Florida unless she was granted

      permission to take child with her. Mother, Father, and child resided in Indiana

      throughout the proceedings. On August 10, 2018, the trial court issued a final

      order regarding Mother’s Notice of Intent to Relocate and Father’s objection

      and petition to modify custody should Mother relocate, denying Mother’s

      request to relocate. Mother now appeals.


                                     Discussion and Decision
[4]   Upon review of a trial court’s determination of a visitation issue, we grant

      latitude and deference to our trial courts, reversing only when the trial court

      manifestly abuses its discretion. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002);

      Lasater v. Lasater, 809 N.E.2d 380, 400 (Ind. Ct. App. 2004). No abuse of

      discretion occurs if there is a rational basis in the record supporting the trial

      court's determination. Lasater, 809 N.E.2d at 400. We will neither reweigh

      evidence nor judge the credibility of witnesses. Id. “We will not substitute our

      own judgment if any evidence or legitimate inferences support the trial court’s

      judgment.” Baxendale v. Raich, 878 N.E.2d 1252, 1257–58 (Ind. 2008).


[5]   “Indiana has long recognized that the rights of parents to visit their children is a

      precious privilege that should be enjoyed by noncustodial parents.” Duncan v.

      Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied. Indiana Code

      chapter 31-17-2.2 provides the statutory framework for parents wishing to

      relocate. Certain relocating individuals are required to file a notice of intent to


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2184 | May 10, 2019   Page 3 of 9
      move and provide certain information “not later than ninety (90) days before

      the date that the relocating individual intends to move.” Ind. Code § 31-17-2.2-

      3. Indiana Code section 31-17-2.2-5, provides, in relevant part,


              (a) Not later than sixty (60) days after receipt of the notice from
              the relocating individual under IC 31-14-13-10 or this chapter, a
              nonrelocating parent may file a motion seeking a temporary or
              permanent order to prevent the relocation of a child.


                                                      ***


              (e) If the nonrelocating parent fails to file a motion under
              subsection (a), the relocating individual who has custody of the
              child may relocate to the new residence.


[6]   A custodial parent’s move out of state, by itself, is not sufficient to support a

      change in custody. Hanks v. Arnold, 674 N.E.2d 1005, 1007 (Ind. Ct. App.

      1996). However, an inconvenience to the non-custodial parent caused by the

      custodial parent’s relocation out of state “does not in itself warrant child

      custody modification.” Id. at 1008.


[7]   Mother relies heavily on Jarrell v. Jarrell for her contention that she is allowed to

      relocate to Florida with the child because Father missed the deadline to file his

      objection to her proposed relocation. 5 N.E.3d 1186, 1192 (Ind. Ct. App. 2014),

      trans. denied. In Jarrell, Mother moved 180 miles and a three-hour drive away

      from Father only six months after dissolution was entered. However, Mother

      and Father maintained the custody arrangement, alternating custody of the

      minor child on a weekly basis, meeting in a city halfway between their

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2184 | May 10, 2019   Page 4 of 9
      residences. Almost two years after Mother moved, Father filed a petition with

      the trial court requesting modification of the custody order, arguing that

      because the minor child was set to begin kindergarten in August of 2013, the

      weekly custody arrangement would no longer be feasible. Father also argued

      that Mother had failed to provide the Notice of Intent to Relocate prior to

      moving. The trial court held a hearing and conducted an in-camera interview of

      the minor child. At the conclusion, the trial court maintained joint legal custody

      but granted sole physical custody to Mother. On appeal, a panel of our court

      noted that both parties “failed to comply with the requirements of the

      Relocation Statute: Mother should have provided notice, and Father should

      have timely objected.” Id. at 1193. However, Father acquiesced to Mother’s

      relocation for two years, and during these two years, it was inevitable that the

      minor child would need to start kindergarten. “The fact that the custody

      arrangement would become infeasible did not arise unexpectedly.” Id. This

      court determined that, because Father acquiesced to Mother’s relocation, the

      trial court did not commit error. Id.


[8]   Here, Mother filed her Notice of Intent to Relocate on July 6, 2017. Appellant’s

      App. pp. 35–38. The Certificate of Service states that a copy of this Notice was

      mailed to Father on July 5, 2017. Id. at 38. Mother argues on appeal that

      Father was served with a copy of the Notice on July 7, 2017. In support of this

      argument, Mother cites to her Motion to Dismiss which states that Father

      “received and signed for via certified mail a copy of the notice of intent to

      relocate” on July 7, 2017. Id.at 46. In spite of this assertion, the record before us


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2184 | May 10, 2019   Page 5 of 9
      does not contain a certified receipt showing when Father received the Notice.

      Nor does the record contain any testimony or other evidence supporting

      Mother’s assertion in her Motion to Dismiss that Father received the Notice on

      July 7, 2017. Father filed his objection to the proposed relocation on September

      6, 2017. The trial court determined that “Father’s objection to relocation was

      filed 2 days past the 60-day requirement, but no objection to the untimely filing

      was raised.”2 Id. at 21.


[9]   In the instant matter, Father’s two-day delay in responding to Mother’s Notice

      of Intention to Relocate is a far cry from two years of acquiescing to relocation,

      even where the Mother in Jarrell did not file a Notice of Intent to Relocate prior

      to moving. Further, given the facts of this matter, we are unable to see any

      prejudice to Mother by such a slight delay in Father’s objection. The two days

      of which Mother complains on appeal did not interfere with her ability to have

      the court determine the issue on the merits, nor did it cause any significant

      delay in the trial court’s decision. While we might reach a different conclusion

      on different facts, we do not find error with the trial court’s decision on the facts

      before us. It is also important to view this issue in the context of the

      constitutional rights concerning parenting.




      2
        Indiana Trial Rule 6(E) provides that “[w]henever a party has the right or is required to do some act or take
      some proceedings within a prescribed period after the service of a notice or other paper upon him and the
      notice or paper is served upon him by United States mail, three [3] days shall be added to the prescribed
      period.” It is possible that Father’s objection was not untimely filed. However, because this was not raised
      below, and because we determine that the slight delay does not form a basis for reversal, we do not address
      this in detail.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2184 | May 10, 2019                        Page 6 of 9
                                                 Conclusion

[10]   Because we determine that Father’s two-day delay in filing an objection to

       Mother’s Notice of Intent to Relocate does not form an adequate basis for

       reversal under the facts before us, we affirm the trial court’s decision.

[11]   Affirmed.


       Brown, J., concurs in result with opinion.

       May, J., concurs.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2184 | May 10, 2019   Page 7 of 9
                                                  IN THE
           COURT OF APPEALS OF INDIANA
       Dereka L. Morris,                                        Court of Appeals Case No.
                                                                18A-JP-2184
       Appellant-Petitioner,

               v.

       Jermaine T. Moore,
       Appellee-Respondent.



       Brown, Judge, concurring in result.


[12]   I concur in result but write separately because I believe that Father’s objection

       was timely. The trial court found that his September 6, 2017 objection was filed

       two days past the sixty-day requirement. However, Indiana Trial Rule 6(E)

       provides:


               Whenever a party has the right or is required to do some act or
               take some proceedings within a prescribed period after the service
               of a notice or other paper upon him and the notice or paper is
               served upon him by United States mail, three [3] days shall be
               added to the prescribed period.


[13]   Here, the copy of Mother’s notice of intent to relocate included in the

       appellant’s appendix states, under a heading for Certificate of Service, that a

       copy of the notice was mailed to him on July 5, 2017. Pursuant to Ind. Trial

       Rule 6(E), three days should be added to the applicable prescribed period, and


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2184 | May 10, 2019         Page 8 of 9
his objection was not untimely. I agree that the timing of his objection does not

form an adequate basis for reversal and thus concur in result.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-2184 | May 10, 2019   Page 9 of 9
