MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Dec 14 2017, 8:55 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Alan D. Wilson                                           David W. Stone IV
Kokomo, Indiana                                          STONE Law Office & Legal
                                                         Research
                                                         Anderson, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of G.Y.,                             December 14, 2017
Minor Child                                              Court of Appeals Case No.
                                                         27A02-1705-JP-1110
                                                         Appeal from the Grant Circuit
C.R.,                                                    Court
Appellant,                                               The Honorable Mark E. Spitzer,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         27C01-1304-JP-40
A.Y.,
Appellee.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017            Page 1 of 12
[1]   C.R. (“Mother”) appeals from the order of the trial court awarding custody of

      G.Y. to A.Y. (“Father”). Mother raises two issues which we consolidate and

      restate as whether the court erred in not allowing the relocation of G.Y. We

      remand.


                                      Facts and Procedural History

[2]   On April 26, 2013, the trial court entered an agreed order on paternity finding

      that Father was the father of G.Y., who was born in 2010, and that Mother and

      Father stipulated to a joint physical and legal custody arrangement of G.Y. On

      February 27, 2014, a Mediation Agreement was filed which stated in part that

      the parties shall share joint legal custody, and the court approved the

      agreement.


[3]   On June 1, 2015, Father filed a petition to modify parenting time. On

      November 12, 2015, the court appointed a guardian ad litem. On August 10,

      2016, guardian ad litem William Myers (“GAL Myers”) filed a report

      indicating that both parents had a solid and proper relationship with G.Y. and

      that he had no concerns other than the parents’ inability to communicate with

      one another regarding G.Y.’s needs. On September 7, 2016, Father filed a

      Petition for Joint Physical Custody or In the Alternative Petition for Additional

      Parenting Time.


[4]   On December 16, 2016, Father filed a petition to modify custody which

      requested full legal and physical custody of G.Y. That same day, the court

      scheduled a hearing on the petition to modify custody for April 19, 2017.


      Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017   Page 2 of 12
[5]   On March 20, 2017, Mother filed a notice of intent to relocate to Winston-

      Salem, North Carolina, which stated that Mother’s husband had a job as a

      regional manager for Jimmy John’s, his employment relocated him there, and

      the job provided the family with better opportunities and more income.


[6]   On April 17, 2017, GAL Myers filed a report in which he stated that he was

      again contacted by the parties through their respective attorneys in October

      2016 regarding “yet another complaint of alleged abuse by” Father on G.Y.,

      that GAL Myers attempted to reach out to Mother, through her attorney,

      regarding the complaint but he had yet to hear from her. Appellant’s Appendix

      II at 45. GAL Myers also reported that he had no concerns regarding Father’s

      parenting abilities and that he did not believe that allowing G.Y. to move to

      North Carolina was in G.Y.’s best interests.


[7]   On April 19, 2017, the court held the scheduled hearing. Without objection

      from Mother’s counsel, GAL Myers testified and his April 17, 2017 report was

      admitted into evidence. During cross-examination by Mother’s counsel, GAL

      Myers testified that the court did not order his supplemental report. The court

      heard testimony from Desiree Hartwig, a family case manager, Marion Police

      Officer Joshua Swanson, Father’s pastor, Father’s coworker, Father’s father-in-

      law, Father’s wife, Father’s mother, Father, Mother’s mother, Mother, and

      Mother’s husband.


[8]   On April 27, 2017, the court entered its Order on Petition to Modify Custody.

      The order states:


      Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017   Page 3 of 12
           On April 19, 2017, [Father] and [Mother] appeared in person and
           by counsel for hearing on the various petitions of the parties, and
           ultimately and most significantly, Mother’s Notice of Intent to
           Relocate.[1] The Court now enters the following Order.

           Mother and Father currently exercise joint legal custody of their
           six-year-old son, [G.Y.]. The evidence indicates that both
           Mother and Father are good parents to [G.Y.], but have been
           unable to communicate well despite the joint legal custody
           arrangement. At this point, Mother and Father have declined to
           speak with each other personally, but will only communicate via
           e-mail. This is due in large part to Mother’s numerous
           complaints to legal authorities alleging various forms of abuse,
           which have in each instance been found to be unsubstantiated.

           The parties have been engaged in an extended battle over
           parenting time, support, and custody since mid-2015. The matter
           was set for hearing on several occasions, but was continued
           several times to involve a guardian ad litem and accommodate
           discovery as other issues arose. The case was finally set for a one
           day custody trial on April 19. On March 20, 30 days before the
           trial, Mother filed her Notice of Intent to Relocate with the
           Court. In that Notice, she indicated that she would be moving to
           Winston-Salem, North Carolina. The Notice was the first
           information about any move that Mother gave to Father
           (although he had learned that a move may be in the offing shortly
           before the Notice through comments made by [G.Y.]), and prior
           to the hearing, despite the joint custody relationship, Mother had
           not shared information with Father about the specifics of the



1
    The court’s order contained a footnote which states:

           There were several motions or petitions filed on both sides relating to custody, support, and
           parenting time. Those petitions were in essence rendered moot by Mother’s relocation
           notice, which of necessity will require a re-examination of the current custody, parenting
           time, and support arrangement. Thus, this Order is directed to the Notice of Intent to
           Relocate and its implications.
Appellant’s Appendix II at 16.

Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017            Page 4 of 12
        move such as the name and location of a new school, potential
        health care providers, potential child care providers, etc.

        The reason that Mother indicated for her move was to follow her
        husband . . . who had taken a job with Jimmy John’s as a store
        manager in Winston-Salem. The standard for evaluating the
        move of a parent is set forth in I.C. 31-17-2.2. When presented
        with a Notice of Intent to Relocate, a court’s first task is to
        determine if the proposed move is undertaken in good faith.
        Nelson v. Nelson, 10 N.E.3d 1283, 1286-1287 (Ind. Ct. App. 2014).
        Legitimate justifications for a relocation include employment
        opportunities, financial considerations, and proximity to family.
        Id. at 1286. In this case, however, there are facts which might
        support the contention that Mother and her husband’s move is
        not in good faith. The timing of the move, shortly before the
        custody trial, is concerning. In addition, the fact that Mother
        didn’t discuss with her joint custodian something as momentous
        as a 500-mile move taking their child nine and one-half hours
        away is irresponsible at best and intentionally deceptive at worst.
        Finally, the proffered reason – a new job – raises its own
        questions, in that [Mother’s husband] previously worked as a
        manager for Jimmy John’s in Marion, and had other
        opportunities to work for a Jimmy John’s in Indianapolis.
        Certainly, there are other Jimmy John’s restaurants which are
        closer to Grant County, Indiana. Nonetheless, both Mother and
        [Mother’s husband] testified that they moved for the job, and
        certainly [Mother’s husband] is working at the new job. Thus,
        the Court will accept at face value Mother’s testimony that the
        move is being made in good faith, particularly since the second
        prong of the analysis is outcome-determinative.

        The second prong of the analysis is whether the move would be
        within the best interests of the child, a burden which is borne by
        Mother as the relocating parent. Nelson, supra, 10 N.E.3d at
        1288. Our Supreme Court has noted that there is no blanket rule
        that a relocation that deprives a parent of time with a child is
        always against the best interest of the child. D.C. v. J.A.C., 977

Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017   Page 5 of 12
        N.E.2d 951 (Ind. 2012). The Court in Nelson noted that the court
        should consider the factors in I.C. § 31-17-2.2-1 and the best
        interests factors considered in making an initial custody
        determination in I.C. § 31-17-2-8. Nelson, supra, 10 N.E.3d at
        1288. Evidence was presented on many of these factors at trial.
        There is certainly a significant distance and travel time involved
        in parenting time and custody with the move – the joint custody
        relationship will be unworkable, even if it could be salvaged
        through significantly improved communication. [G.Y.] has close
        ties with many extended family members in Grant County, and
        those ties are extraordinary as he spends time each week with
        extended family on both parents’ sides. While Mother has
        relatives in North Carolina or the surrounding states, most are
        not currently close to [G.Y.] and are a significant drive away
        from Winston-Salem. [G.Y.] is also a regular participant at his
        church and church youth groups, and attends school in Grant
        County. Certainly, there was evidence that the move would
        result in hardship on the non-moving parent (Father). Further,
        the guardian ad litem testified that in his opinion, a change of
        custody would be appropriate under the circumstances.

        There are countervailing considerations as well. [G.Y.’s] half-
        brother will be moving with his parents, and there is evidence
        that he and [G.Y.] are closely bonded. If, as Mother asserts, [her
        husband’s] job opportunity leads to opportunities for
        advancement, it would provide financial stability for their
        household which has experienced financial instability and
        personal bankruptcy in the past. Such financial stability would
        certainly be a benefit to [G.Y.’s] future.

        Considering the factors set forth in the relocation statute, the
        Court finds that on balance, the best interests of the child dictate
        sole legal custody to be with Father and Mother to receive
        parenting time according to the Parenting Time Guidelines,
        when distance is a factor, unless the parties agree to a different
        arrangement. The Court comes to this conclusion, mindful that
        “[e]ven two parents who are exceptional on an individual basis

Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017   Page 6 of 12
        when it comes to raising their children should not be granted, or
        allowed to maintain, joint legal custody over the children if it has
        been demonstrated . . . that those parents cannot work and
        communicate together to raise the children.[”] Carmichael v.
        Siegel, 754 N.E.2d 619, 636 (Ind. Ct. App. 2001). Unfortunately,
        “a joint custody order may simply provide a framework for the
        parents to continue the conflict which brought them to divorce in
        the first place. The conflict would just be focused solely on the
        children.” Barteau and Hopkins, Joint Custody in Indiana, 27 Res
        Gestae 320, 324 (1984). Sadly, that has occurred in this case.
        However, the parties are encouraged to attempt to repair that
        relationship, and to discuss and, where appropriate, modify, the
        holiday schedules if an alternate arrangement may be more
        workable with the distance factors. In addition, Father shall
        facilitate reasonable telecommunication between Mother and
        [G.Y.], including but not limited to texting/instant messaging/e-
        mail, FaceTime, or social media communication. On those
        occasions where Mother is in Grant County visiting her family,
        after reasonable notice, Father shall make reasonable
        accommodations for Mother to spend additional parenting time
        with [G.Y.]. Father also testified that he was aware of [G.Y.’s]
        bond with Mother’s family, and the Court expects that Father
        will facilitate grandparental parenting time in the future.

        The change in custody triggers a recalculation of support.
        Mother shall pay support in the amount of $39 per week,
        together with the annual support fee. An Income Withholding
        Order is authorized if Mother should gain employment. The
        parties shall alternate the tax exemption with Mother entitled to
        the tax exemption beginning in 2017. Pursuant to the
        Guidelines, Mother shall pay the first $503.32 of uninsured
        medical expenses and the balance shall be paid 75% by Father
        and 25% by Mother. A Child Support Obligation Worksheet is
        attached to this Order. Father shall make arrangements to add
        [G.Y.] to his insurance as soon as the opportunity is available.



Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017   Page 7 of 12
                Both parties requested fees. Father is gainfully employed, and
                Mother is able to be gainfully employed but has chosen not to
                work. Both parties shall pay their own fees.

       Id. at 16-21 (footnotes omitted).

                                                       Discussion

[9]    The issue is whether the trial court erred in not allowing the relocation of G.Y.

       Mother asserts that the trial court erred by failing to shift the burden to Father

       after it accepted Mother’s testimony that the move was being made in good

       faith.2 Father contends that the trial court did not state that Mother failed to

       meet her burden of proof that the move would be in G.Y.’s best interest and

       that it simply determined that the award of custody to Father was in G.Y.’s best

       interest.


[10]   We observe that the court titled its order “ORDER ON PETITION TO

       MODIFY CUSTODY,” yet noted that it was focusing on Mother’s notice of

       intent to relocate. Id. at 16. Specifically, the court noted:


                There were several motions or petitions filed on both sides
                relating to custody, support, and parenting time. Those petitions
                were in essence rendered moot by Mother’s relocation notice,
                which of necessity will require a re-examination of the current
                custody, parenting time, and support arrangement. Thus, this




       2
         Mother also contends that the trial court erred in admitting GAL Myers’s supplemental report. However,
       Mother did not object to the admission of the report at the hearing. Accordingly, Mother has waived this
       issue. See Bogner v. Bogner, 29 N.E.3d 733, 740 (Ind. 2015) (noting the “general principle that objections not
       contemporaneously raised are waived”).

       Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017           Page 8 of 12
               Order is directed to the Notice of Intent to Relocate and its
               implications.


       Id.


[11]   Generally, where a trial court makes specific findings of fact and conclusions of

       law in an order modifying custody and preventing relocation, we “shall 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 the

       witnesses.” D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind. 2012) (quoting Best v. Best,

       941 N.E.2d 499, 502 (Ind. 2011) (quoting Ind. Trial Rule 52(A))). Findings are

       clearly erroneous only when the record contains no facts to support them either

       directly or by inference. Id. An appellate court neither reweighs the evidence

       nor reassesses witness credibility, and it views evidence most favorably to the

       judgment. Id. “We review the trial court’s legal conclusions de novo.”

       Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).


[12]   Ind. Code §§ 31-17-2.2 govern the relocation of a custodial parent. Ind. Code §

       31-17-2.2-5 governs the burden of proof and provides:


               (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.

               (b) On the request of either party, the court shall hold a full
               evidentiary hearing to grant or deny a relocation motion under
               subsection (a).



       Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017   Page 9 of 12
               (c) The relocating individual has the burden of proof that the
               proposed relocation is made in good faith and for a legitimate
               reason.

               (d) If the relocating individual meets the burden of proof under subsection
               (c), the burden shifts to the nonrelocating parent to show that the proposed
               relocation is not in the best interest of the 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.

       (Emphasis added).


[13]   In discussing the reason for Mother’s move, while the trial court expressed

       some reservation regarding whether Mother’s proposed relocation was made in

       good faith, it also observed that both Mother and Mother’s husband testified

       that they moved for the job, found that Mother’s husband was working at the

       new job, and accepted “at face value Mother’s testimony that the move is being

       made in good faith.” Appellant’s Appendix Volume II at 18. The court stated

       that the “second prong of the analysis is whether the move would be within the

       best interests of the child, a burden which is borne by Mother as the relocating

       parent.” Id. (citing Nelson v. Nelson, 10 N.E.3d 1283, 1288 (Ind. Ct. App.

       2014)). However, the court in Nelson did not place the burden on the relocating

       parent to demonstrate whether the move would be in the best interests of the

       child. Rather, the court held that the relocating individual has the burden of

       proof that the proposed relocation was made in good faith and for a legitimate

       reason and that, 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

       Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017   Page 10 of 12
       interest of the child. Nelson, 10 N.E.3d at 1286. Specifically, the court stated:

       “Based on our conclusion that Mother’s move to South Carolina was made in

       good faith and for a legitimate reason, we now have to determine if Father met

       his burden in proving that relocation was not in the best interest of the Child.”

       Id. at 1288. In light of Ind. Code § 31-17-2.2-5 and Nelson, we conclude that the

       trial court improperly placed the burden on Mother to show that the proposed

       relocation was in the best interest of G.Y.


[14]   While the trial court found that “on balance, the best interests of the child

       dictate sole legal custody to be with Father and Mother to receive parenting

       time,” the court also recognized some “countervailing considerations”

       including that G.Y.’s half-brother would be moving with his parents, there was

       evidence that he and G.Y. were closely bonded, and that if the job opportunity

       led to opportunities for advancement, it would provide financial stability for

       their household. Appellant’s Appendix Volume II at 19. We note that

       “[a]ppellate courts ‘are in a poor position to look at a cold transcript of the

       record, and conclude that the trial judge, who saw the witnesses, observed their

       demeanor, and scrutinized their testimony as it came from the witness stand,

       did not properly understand the significance of the evidence.’” Steele-Giri v.

       Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting Kirk v. Kirk, 770 N.E.2d 304,

       307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850,

       852 (1965))). Under the circumstances, we conclude that remand is necessary

       for the trial court to analyze the issue utilizing the correct burden of proof based




       Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017   Page 11 of 12
       on the existing record. We express no opinion as to the outcome utilizing the

       correct burden of proof.


                                                   Conclusion

[15]   For the foregoing reasons, we remand for the trial court to consider the correct

       burden of proof based on the existing record and to issue an amended order.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1705-JP-1110 | December 14, 2017   Page 12 of 12
