                                                     Apr 17 2014, 9:06 am
FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

BILL D. EBERHARD                              LINDSEY A. GROSSNICKLE
Eberhard & Weimer, P.C.                       Bloom Gates & Whiteleather, LLP
LaGrange, Indiana                             Columbia City, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

GEOFFREY A. GILBERT,                          )
                                              )
      Appellant-Respondent,                   )
                                              )
             vs.                              )      No. 57A03-1308-DR-312
                                              )
MELINDA J. GILBERT,                           )
                                              )
      Appellee-Petitioner.                    )


                   APPEAL FROM THE NOBLE SUPERIOR COURT
                        The Honorable Robert Kirsch, Judge
                           Cause No. 57D01-1204-DR-7



                                    April 17, 2014

                             OPINION - FOR PUBLICATION

RILEY, Judge
                                 STATEMENT OF THE CASE

       Appellant-Respondent, Geoffrey A. Gilbert (Father), appeals the trial court’s Order

approving the relocation request of Appellee-Petitioner, Melinda J. Gilbert (Mother).1

       We affirm.

                                              ISSUES

       Father raises two issues on appeal, which we consolidate and restate as the following

single issue: Whether the trial court abused its discretion by granting Mother’s petition to

relocate from Albion, Indiana to Goshen, Indiana.

       Mother raises one issue on cross-appeal, which we restate as the following:

Whether Mother is entitled to an award of appellate attorney’s fees because Father filed a

frivolous or bad faith appeal.

                          FACTS AND PROCEDURAL HISTORY

       On September 8, 2001, Father and Mother were married and they established their

home in Albion, in Noble County. In the course of their nearly eleven-year marriage,

Father and Mother had two children (the Children)—a son born in February of 2004, and

a daughter born in January of 2007. Father also has two teenage children from a previous

marriage. Father works in Goshen for a company that constructs mobile homes. Since

January of 2012, Mother, who works from home, has been employed by a company

headquartered in Grand Rapids, Michigan that sells food service equipment.


1
  An oral argument was held in this case on February 28, 2014 as part of the Women’s Bench Bar Retreat
at the Culver Cove Resort & Conference Center in Culver, Indiana. We thank the Women’s Bench Bar
for the invitation and hospitality and the attorneys for their excellent advocacy.

                                                  2
       In the spring of 2012, Father and Mother decided to separate, and Father moved out

of the marital residence. Four months later, on August 23, 2012, the trial court entered a

Decree of Dissolution, which incorporated the Mediated Marital Settlement Agreement

reached by Father and Mother. Pursuant to the Settlement Agreement, Father and Mother

“agreed that it is in the best interests of [the Children]” for the parents to share joint legal

custody and for Mother to have primary physical custody. (Appellant’s App. p. 9). Father

agreed to exercise his parenting time with the Children from Friday through Tuesday on

alternating weekends, as well as overnight on alternating Mondays. During the Children’s

summer scholastic breaks, Father and Mother alternate physical custody on a weekly basis.

The Settlement Agreement also provides that Father and Mother may arrange for Father to

have parenting time with the Children “[a]t other reasonable times and places.”

(Appellant’s App. p. 9). The trial court did not issue an order for child support.

       Both parents are actively involved in the Children’s education; they volunteer at

school events and chaperone their field trips. The Children participate in a number of

different sports and other extracurricular activities. Father coaches their son’s baseball,

football, and basketball teams, as well as their daughter’s t-ball team. For several months

after the divorce, Father lived only a few miles from Mother’s house, so on the mornings

following the Children’s overnight stays, Father drove the Children to Mother’s house

where they would board the school bus.

       In the fall of 2012, Mother’s then-boyfriend (Fiancé) moved to Albion to reside with

Mother and the Children. Fiancé has a child from a previous marriage who lives in Grand

Rapids and spends three weekends each month with Fiancé. By the beginning of 2013,

                                               3
Mother and Fiancé, who were expecting a baby in the spring, realized they needed more

space to accommodate their family and began searching for a new home. Finding no

suitable houses in Albion, Mother selected a newly constructed, five bedroom house in

Goshen approximately thirty miles away. Mother entered into an agreement to sell her

Albion residence and into another to purchase the home in Goshen, with both deals

contingent upon the trial court’s approval of the move.

       On April 3, 2013, Mother filed notice with the trial court, communicating her intent

to relocate from Albion to Goshen. On May 2, 2013, Father filed an objection to Mother’s

relocation and concurrently filed his Verified Motion for Modification of Custody,

Parenting Time, and Child Support, requesting that the trial court award him physical

custody. On May 10, 2013, Father filed a motion for the trial court to appoint a guardian

ad litem. Concerned that the appointment of a guardian ad litem would unnecessarily delay

the hearing, Mother objected, and on May 13, 2013, the trial court denied Father’s request.

On June 7, 2013, the trial court conducted an evidentiary hearing on the matters of Mother’s

request to relocate and Father’s motion to modify custody. On June 10, 2013, Father filed

a motion for the trial court to conduct an in camera interview with their son, who was nine

years old at the time. That same day, following Mother’s objection based on Father’s

failure to request the interview prior to the close of the evidence, the trial court denied

Father’s motion.

       The next day, June 11, 2013, the trial court issued its Order approving Mother’s

proposed relocation and denying Father’s motion to modify custody. Specifically, the trial

court found that “[Mother] has met her burden of proof that her proposed relocation is

                                             4
made in good faith and for a legitimate reason and [Father] has not met his succeeding

burden to show that the proposed relocation is not in the best interest of the parties’

[C]hildren.”   (Appellant’s App. p. 5).      The trial court affirmed its previous orders

concerning the custody, support, and parenting time arrangements with the “hope[] that the

parties will be able [to] continue to co-parent and cooperate with each other as they have

to date.” (Appellant’s App. p. 5). On July 11, 2013, Father filed a motion to correct error,

contending that the trial court erred in finding that Mother established a legitimate good

faith reason for her relocation, which the trial court denied the same day.

       Father now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

                                          APPEAL

                                   I. Standard of Review

       In this case, the parties did not request, and the trial court did not issue, specific

findings of fact or conclusions of law. Accordingly, we review this case under a general

judgment standard. L.C. v. T.M., 996 N.E.2d 403, 407 (Ind. Ct. App. 2013). Relying on

this standard, we will affirm the trial court if its judgment “can be sustained on any legal

theory consistent with the evidence.” Id.

       The Indiana Supreme Court has articulated an unequivocal policy of “granting

latitude and deference to our trial judges in family law matters.” Swadner v. Swadner, 897

N.E.2d 966, 971 (Ind. Ct. App. 2008) (quoting In re Marriage of Richardson, 622 N.E.2d

178, 178 (Ind. 1993)). “[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

                                              5
demeanor, and scrutinized their testimony as it came from the witness stand, did not

properly understand the significance of the evidence.’” D.C. v. J.A.C., 977 N.E.2d 951,

956-57 (Ind. 2012) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). It is well-

established that there should be finality in matters concerning the custody of a child.

Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind. 2008). Accordingly, on review, “we

‘will not substitute our own judgment if any evidence or legitimate inferences support the

trial court’s judgment.’” T.L. v. J.L., 950 N.E.2d 779, 784 (Ind. Ct. App. 2011) (quoting

Baxendale, 878 N.E.2d at 1257-58), reh’g denied.

                                        II. Relocation

       Father claims that the trial court abused its discretion in granting Mother’s request

to relocate thirty miles from Albion to Goshen. When a parent whose child is the subject

of a custody or parenting time order seeks to relocate, he or she must provide notice to both

the trial court and the non-relocating parent of his or her intent to move. Ind. Code §§ 31-

17-2.2-1(a); -3(a)(1). Indiana’s Relocation Statute mandates that this notice must provide

the non-relocating parent with the relocating parent’s new address and phone number, the

intended move date, “the specific reasons for the relocation of the child[,]” a proposed

revised parenting time schedule, and information about the non-relocating parent’s ability

to object. I.C. § 31-17-2.2-3(a)(2).

       If, within sixty days of receiving notice, the non-relocating parent fails to object, the

relocating custodial parent is permitted to relocate with the child. I.C. § 31-17-2.2-5(a).

However, if the non-relocating parent files a motion to prevent the child’s relocation, the

trial court must apply a two-prong test to decide the permissibility of the relocation. First,

                                               6
the relocating parent must prove “that the proposed relocation is made in good faith and

for a legitimate reason.” I.C. § 31-17-2.2-5(c). Second, once a good faith basis and a

legitimate reason for the relocation have been established, the burden of proof shifts to the

non-relocating parent to demonstrate “that the proposed relocation is not in the best interest

of the child.” I.C. § 31-17-2.2-5(d).

                          A. Good Faith and Legitimate Reason

       Father first asserts that Mother failed to satisfy her burden of proof that the proposed

relocation is in good faith and for a legitimate purpose. The Relocation Statute “requires

that a legitimate reason be objectively shown[] and[,] by requiring that the relocation be in

good faith, demands that the objective reason be more than a mere pretext.” T.L., 950

N.E.2d at 787. In general, our court has found that employment opportunities, financial

considerations, and proximity to family are legitimate reasons to justify a relocation. See

id. at 787-88. Father contends that, by citing no “economic or familial benefit,” Mother’s

proposed relocation is not grounded in a legitimate purpose. (Appellant’s Br. p. 13). While

economic and familial considerations are valid bases for relocating, they are certainly not

the only legitimate reasons a parent may provide. See H.H. v. A.A., 3 N.E.3d 30 (Ind. Ct.

App. 2014) (finding mother’s desire “to live and create a family life” with her new husband

in Hawaii was a legitimate purpose).

       In this case, Mother’s notice of relocation provided that her reason for relocating “is

because my family is expanding, and I would like [to] move to a better school district for

the best interest of my [C]hildren.” (Appellant’s App. p. 29). At the hearing, Mother

testified that she and Fiancé were engaged and that they had recently welcomed a baby;

                                              7
thus, a larger home was necessary in order to accommodate all four of their children.

Furthermore, because both Mother and Fiancé primarily work from home, they needed a

house with adequate office space. According to Mother, she began hunting for a new house

in Shipshewana “mainly because of the school system. It graded really well.” (Transcript

p. 19). However, after Father informed Mother that Shipshewana’s school system did not

have a football team, which would be very important to their son, Mother refocused her

search to the Middlebury Community Schools District. Conversely, Father maintains that

the relocation to Goshen serves only to move the Children further away from Father and

their family in Noble County and increases the distance of Mother’s weekly commutes to

Fort Wayne. Additionally, Father posits that “Mother’s stated reason for finding better

schools seems mostly an afterthought and not an actual reason for relocation” because

Mother initially looked for houses in Albion and she presented no evidence that

Middlebury Community Schools are superior to Central Noble Community Schools.

(Appellant’s Br. p. 11).

       We must reiterate that the trial court is entitled to great deference in this matter, and

the trial court considered all of the reasons proffered by Mother to find that she had “a

reasonable basis” for moving. (Tr. p. 100). We decline Father’s invitation to reweigh the

evidence or assess Mother’s credibility. The record clearly supports the trial court’s

conclusion that Mother desired to relocate in good faith. In deciding to purchase a home

in Goshen, Mother sought to alleviate Father’s inconvenience: Goshen is only thirty miles

from Father’s home in Albion, Father works in Goshen, and Father’s two older children

live in Middlebury and attend the same school system that the Children would. Mother

                                               8
testified that she wanted to maintain the same parenting time schedule with Father, and

Father agreed that, because he works so close to the Children’s new school, he could still

coach their sports teams, participate in school functions, and attend their extracurricular

activities. Mother also believed that Goshen was a reasonable choice because it is closer

to Grand Rapids, where she travels quarterly for work, and where Fiancé travels weekly

for work and to pick up his child.

       The “good faith and for a legitimate reason” criterion should not “pose[] an

inordinately high bar for a relocating parent to meet.” T.L., 950 N.E.2d at 789. As the trial

court stated during the hearing, this is not “a situation where somebody is going to be

deprived of parenting time[,]” nor is it a scheme by Mother to take the Children away from

Father. (Tr. pp. 98-99). Accordingly, we conclude that the trial court properly exercised

its discretion in finding that Mother demonstrated a good faith and legitimate reason for

moving.

                              B. Best Interests of the Children

       Second, Father asserts that the trial court abused its discretion in determining that

the relocation is in the Children’s best interests. It is well-established that “the resolution

of relocation disputes ultimately turns on a judicial determination of the best interests of

the child.” T.L., 950 N.E.2d at 788.

       The Relocation Statute stipulates that the burden is on Father to prove that the

relocation is not in the best interests of the Children, which the trial court concluded Father

failed to do. I.C. § 31-17-2.2-5(d). The relevant factors the trial court must consider in

evaluating the Children’s best interests include:

                                              9
          (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 fourteen (14) years of age.
          (4) The interaction and interrelationship of the child with:
                (A) the child’s parent or parents;
                (B) the child’s sibling[(s)]; and
                (C) any other person who may significantly affect the child’s best
                    interests.
           (5) The child’s adjustment to the child’s:
                (A) home;
                (B) school; and
                (C) community.
           (6) The mental and physical health of all individuals involved.
           (7) Evidence of a pattern of domestic or family violence by either parent.
           (8) Evidence that the child has been cared for by a de facto custodian . . . .

I.C. § 31-17-2-8.2 The trial court must consider each of the statutory factors in making a

best interests determination, but it is well within the trial court’s discretion to place greater

weight on certain evidence and certain factors. D.C., 977 N.E.2d at 956-57.

        Father now claims that the trial court failed to consider the negative impact that the

relocation would have on the Children’s relationships with their extended family members,

Father’s involvement in the Children’s lives, and the Children’s attachment to their school

and community. Specifically, Father argues that, whereas the Children have no family in

Goshen, they “regularly associate with” their twenty-one relatives who live in Noble

County. (Appellant’s Br. p. 14). Father also expressed concern over his inability to


2
  Father argues that the trial court was obligated to weigh the factors enumerated in Indiana Code section
31-17-2.2-1(b) (Relocation Factors) to determine whether the relocation would be in the Children’s best
interests. However, we note that this provision explicitly states that the trial court is to consider the
Relocation Factors for deciding whether to modify a custody order following a relocation, not in
determining whether the relocation itself is permissible. Although the trial court denied Father’s motion
to modify custody, Father’s sole contention on appeal is that the trial court abused its discretion by
granting Mother permission to relocate. Because the issue of the Children’s custody is not before this
court, we do not address Father’s arguments concerning the Relocation Factors.

                                                    10
participate in the Children’s activities if they were no longer in Albion. He noted that the

Children were accustomed to their routine and being able to ride the school bus together,

and that a new school might not be better or provide the same extracurricular opportunities.

According to Father, “staying in a life that [the Children] know, that they are comfortable

with, that they love is better for them than rolling the dice and seeing what might happen

an hour away from here.” (Tr. p. 82).

        We find that Father’s arguments are unsupported by the record. Per the trial court’s

order, Father will have precisely the same amount of, and the same schedule for, parenting

time.   Thus, the Children will have the same opportunity during Father’s custodial

weekends to interact with his side of the family, and although there is extended family in

Noble County, the Children’s half-siblings are closer to Goshen. Albion is only thirty miles

away from Goshen; this distance will not prohibit Father’s active involvement in the

Children’s lives. See Dixon v. Dixon, 982 N.E.2d 24, 26 (Ind. Ct. App. 2013). In fact,

Father acknowledged during the hearing that the proximity of his work to the Children’s

new school would permit him to attend all of their school and athletic events, and Mother

testified that their son had been invited to play on a travel baseball league for which Father

had been offered a coaching position. The continuation of Father’s interaction with the

Children is undoubtedly important, but it is the best interests of the Children—not Father—

that are of the utmost significance.

        Regarding the Children’s adjustment to their new school and community, both

Father and Mother testified that their daughter is a social butterfly and that their son quickly

makes friends through sports. Additionally, while the Children’s Albion home is located

                                              11
out in the country, their new house in Goshen is located in a subdivision with other young

children. It is not axiomatic that changes in the Children’s school, community, and daily

routine are contrary to their best interests. Rather, it is the Children’s ability to adjust to

those changes that determines whether a relocation is appropriate, and Father has presented

no evidence that the move will negatively affect the Children. See id.

       Father’s final contention is that the trial court failed to consider the wishes of his

Children in determining their best interests. Specifically, Father argues that the trial court

should have heeded his requests for the appointment of a guardian ad litem or for an in

camera interview before rendering its decision. At the time of the evidentiary hearing, the

Children were nine and six years old. Thus, while the Children’s wishes are certainly a

factor to be considered, the trial court was under no obligation to place a significant value

on their preferences because they are under age fourteen. I.C. § 31-17-2-8(3).

       In certain circumstances, an in camera interview is a beneficial tool for the trial

court, but it is not an “absolute requirement.” In re Paternity of X.A.S. v. S.K., 928 N.E.2d

222, 229 (Ind. Ct. App. 2010), trans. denied. Moreover, Father waited until three days

after the evidentiary hearing to file his request for the interview. All evidence must be

presented “during the course of a trial and it is a matter of discretion whether a trial court

will permit a party to present additional evidence or testimony . . . after the close of all of

the evidence.” In re Paternity of Seifert, 605 N.E.2d 1202, 1207 (Ind. Ct. App. 1993),

trans. denied. By the time Father filed the request for an in camera interview, the trial

court was nearly ready to issue its decision; therefore, we do not find the trial court abused

its discretion in denying Father’s request. Similarly, the appointment of a guardian ad litem

                                              12
is a matter left to the trial court’s sound discretion. I.C. § 31-17-6-1. Because it is evident

that both Father and Mother are committed to protecting the Children’s best interests, we

find the trial court did not abuse its discretion in declining to appoint a guardian ad litem.

       We further find that there is sufficient evidence of the Children’s wishes in the

record. Both Father and Mother testified that they have a close relationship with the

Children, and they both strive to ensure the Children are able to participate in the activities

they enjoy. Following the divorce, the Children have lived primarily with Mother, who is

home during the day, but have also enjoyed having Father as a coach in their various sports.

Accordingly, it is reasonable to infer that the Children would desire to maintain their close

relationship with both parents. As we previously noted, the amount of time the Children

spend with Father was not going to change regardless of whether the trial court approved

or denied Mother’s request to relocate. Therefore, we conclude that the trial court did not

abuse its discretion in granting Mother’s relocation request because Father failed to prove

that it was not in the Children’s best interests.

                                      CROSS-APPEAL

       Mother claims that she is entitled to an award of appellate attorney fees because

“Father’s appeal is frivolous and in bad faith.” (Appellee’s Br. p. 13). Contending that

Father’s “appeal is an academic exercise only[,]” Mother cites to Father’s failure to present

any evidence at trial to rebut Mother’s testimony that the relocation was in the Children’s

best interests and that the custody arrangement should be maintained. (Appellee’s Br. p.

14). On the other hand, Father claims that he filed his appeal “in good faith and has laid



                                               13
out legitimate arguments in a clear and concise manner” and that he has complied with “the

form and content requirements” of the appellate rules. (Appellant’s Reply Br. p. 4).

       Pursuant to Indiana Rule of Appellate Procedure 66(E), our court has discretion to

award damages, which may be in the form of attorney fees, “if an appeal . . . is frivolous

or in bad faith.” Our court has resolved to “assess appellate damages only against an

appellant who in bad faith maintains a wholly frivolous appeal”—that is, where the “appeal

is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose

of delay.” Harness v. Parkar, 965 N.E.2d 756 (Ind. Ct. App. 2012); Thacker, 797 N.E.2d

at 346 (emphasis added). We recognize that, in executing this discretion, we must “use

extreme restraint” because there is a “potential chilling effect upon the exercise of the right

to appeal.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). The imposition

of appellate attorney fees “is not imposed to punish mere lack of merit, but something more

egregious.” Manous v. Manousogianakis, 824 N.E.2d 756, 767 (Ind. Ct. App. 2005).

       Claims for appellate attorney fees are categorized as either “substantive” or

“procedural” bad faith claims. Thacker, 797 N.E.2d at 346. A procedural bad faith claim

is found where “a party flagrantly disregards” the rules of appellate procedure, omits or

misrepresents relevant facts, or attempts to waste the time of the opposing party or the

court. Id. at 346-47. Alternatively, a substantive bad faith claim occurs where a party’s

“contentions and arguments are utterly devoid of all plausibility.” Id. at 346. Here, Mother

does not challenge Father’s adherence to the procedural rules; thus, she has raised a

substantive bad faith claim.



                                              14
       We find that Father’s appeal is neither frivolous nor in bad faith. Father presented

a detailed argument, supported by citations to case law, challenging the trial court’s

determination that Mother’s specified bases for relocating are sufficient to constitute a

legitimate purpose. The current case law is sparse in terms of defining what is or is not an

acceptable purpose for relocating, so while we ultimately agree with the trial court that

Mother had a valid reason to move, we cannot say that it was implausible for Father to

argue that Mother failed to tender a sufficiently legitimate reason. Therefore, we decline

to award Mother her attorney fees under Appellate Rule 66(E).

                                      CONCLUSION

       Based on the foregoing, we conclude that the trial court did not abuse its discretion

in granting Mother’s request to relocate because she had a good faith and legitimate

purpose for relocating, and the move was not contrary to the Children’s best interests.

Additionally, we conclude that Mother is not entitled to appellate attorney fees because

Father’s appeal is not frivolous or in bad faith.

       Affirmed.

BARNES, J. concurs

ROBB, J. dissents with separate opinion




                                              15
                            IN THE
                  COURT OF APPEALS OF INDIANA


GEOFFREY A. GILBERT,                      )
                                          )
       Appellant-Respondent,              )
                                          )
        vs.                               )        No. 57A03-1308-DR-312
                                          )
MELINDA J. GILBERT,                       )
                                          )
       Appellee-Respondent.               )


ROBB, Judge, dissenting


       As noted by the majority, when a parent subject to a custody or parenting time order

wishes to relocate and the other parent objects, the relocating parent must prove that the

relocation is made in good faith and for a legitimate reason. If the relocating parent makes

this showing, then the objecting parent must prove that the relocation is not in the child’s

best interest. The majority decides that the record clearly supports the trial court’s




                                              16
conclusion that Mother desired to relocate in good faith and for a legitimate reason. I

respectfully dissent.3

       In her notice of intent to relocate, Mother stated her reasons as accommodating her

growing family and moving to a better school district. The only testimony about the quality

of the school districts in the area was Mother’s reference to originally looking for a new

house in Shipshewana because those schools “graded really well.” Transcript at 19.

However, when Father pointed out Shipshewana schools did not have a football program

in which their son could participate, Mother began looking at houses in Goshen. There

was no testimony comparing the schools the children were attending with the Goshen

schools, and in fact, there was no testimony about the Goshen schools at all, other than

Mother affirming she had investigated them. Therefore, I do not believe that there is any

evidence of record that supports moving to a better school district as a good faith and

legitimate reason for Mother’s proposed relocation.

       Mother also testified that space was the main reason for moving: she wanted a

bigger home because she had become engaged, her fiancé had moved in with her and the

children, and she and her fiancé had recently had a baby. With regard to Mother’s efforts

to find a bigger home in her current town, Mother testified she looked in Albion but did

not find anything she liked: “there aren’t any that were any I guess bigger than the house

that we live in now. I mean there wasn’t a house that was as accommodating as moving.”

Id. at 25. However, she went to no actual showings in Albion because she found no listings


       3
           I concur with the majority that Mother is not entitled to attorney fees pursuant to Appellate Rule 66(E).

                                                         17
online she felt were worthwhile.       Mother’s proposed new home in Goshen is new

construction; there was no testimony that she investigated the possibility of building a new

home in Albion.

       I see the evidence in this case as distinctly different from recent cases in which we

have found a good faith and legitimate reason for relocation was proven. In In re Paternity

of X.A.S. v. S.K., 928 N.E.2d 222 (Ind. Ct. App. 2010), trans. denied, for example, the

child’s custodial parent and primary caregiver for nine of his twelve years married a

member of the United States Navy who was stationed in California. We held the trial

court’s denial of the custodial parent’s petition to relocate was in error, noting that

regardless of the decision, the child was going to live across the country from one of his

parents and it was in the child’s best interest to stay with his primary caregiver. Id. at 229-

30; see also H.H., 3 N.E.3d 30 (holding mother’s desire to move with child to join her new

husband who had accepted a job in and moved to Hawaii was a good faith and legitimate

reason for relocation, but also holding the move was not in the child’s best interest);

Kietzman v. Kietzman, 992 N.E.2d 946, 950 (Ind. Ct. App. 2013) (affirming trial court’s

grant of mother’s request to relocate with child and new husband, whose job had offered

him a three year assignment to China). In those cases, there was no way for the parent to

satisfy the competing interests of keeping the children near the non-custodial parent and

also building a new life. Here, although Mother is moving only a few miles, she has shown

no significant and compelling reason for her move. She may not have been able to find a

home she wanted to move into in Albion at this time, but she presents no reason why she


                                              18
must move now. She indicated she wished to have the move accomplished prior to the

start of school, but if she waited for a suitable home to become available (or built a home

to suit) in Albion, the children would not be changing schools and the timing would not

matter. Mother’s proposed move separates Father from the children just enough that

although he will still be able to exercise his scheduled parenting time, he will be more on

the fringes of their everyday lives. As Father testified:

       To say that things wouldn’t change when you take a seven minute drive to
       see them to over an hour drive to see them I think is ludicrous, because it
       does change things. And again you might be able to show on paper where,
       oh, ten miles is ten miles, but it is not the same thing when you are that far
       apart and the opportunities won’t come. And what I’ve learned from the past
       is what might be hey can you pick them up from school now because I am
       right here turns into hey, don’t worry about it or I don’t even actually get a
       call and someone else, a friend picks them up and I don’t even get that
       opportunity anymore. Those are the things that don’t show up on paper.


Tr. at 81.

       As the majority states, the “good faith and legitimate reason” prong should not set

an inordinately high bar for the relocating parent to meet, lest the ultimate question of the

best interest of the child never be reached. See slip op. at 9 (quoting T.L., 950 N.E.2d at

789). Nonetheless, the reason for relocation must be objectively legitimate. Id. at 7

(quoting T.L., 950 N.E.2d at 787). Although Mother mentioned several other supposed

reasons for moving—such as the schools, and being somewhat closer to Grand Rapids for

occasional work purposes and purposes of her fiancé visiting his daughter—she stated

more than once that her primary reason for moving was that her growing family needed


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more space. If simply saying, “I want a bigger house,” is a good faith and legitimate reason

for relocating, then we have gone too far in the opposite direction of setting too high a bar

for the relocating parent to meet, we have set no bar whatsoever. Nothing underscores the

need for a more definitive standard of what constitutes a “good faith and legitimate reason”

than Mother’s attitude, reflected both in her brief and in her statements at oral argument,

that it was too late to afford Father any relief—the trial court had accepted her reason and

she had already moved. In essence, any stated reason that is not an outright admission that

the parent is relocating to interfere with the other parent’s rights would be considered a

good faith and legitimate reason for relocating, and the relocating parent’s burden of proof

as set forth in the statute would be meaningless.

       In D.C. v. J.A.C., 977 N.E.2d 951 (Ind. 2012), our supreme court considered a trial

court order finding the custodial parent who sought to move out-of-state with the parties’

child met her initial burden of showing a good faith and legitimate reason for relocation –

better employment and a romantic relationship – but also finding relocation was not in the

child’s best interest. In affirming the trial court, the court “reiterate[d] that in family law

matters, trial courts are afforded considerable deference” and held the trial court’s

judgment denying the petition to relocate was “well supported by the findings . . . .” Id. at

953. Here, the trial court made no findings of fact, it simply found as a matter of law that

Mother had met her burden of proving a good faith and legitimate reason for relocating and

that Father had not met his succeeding burden of proving relocation was not in the

children’s best interests. Because I disagree that Mother has stated a good faith and


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legitimate reason for relocating, I would hold the trial court erred in approving the

relocation.4




         4
            Father presented his own testimony regarding the proposed move and its impact on the best interests of
the children. Because I do not believe Mother met her burden of proving a good faith and legitimate reason for
moving, I do not believe the burden shifted to Father to prove the best interests of the children were not served by
relocation, and I therefore do not address that point.

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