MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.                                       FILED
                                                                   Feb 26 2018, 6:39 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT
Jonathan R. Deenik
Deenik Law, LLC
Greenwood, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

K.W.,                                                    February 26, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         41A01-1708-DR-1833
        v.                                               Appeal from the Johnson Superior
                                                         Court
C.W.,                                                    The Honorable Eugene Stewart,
Appellee-Petitioner.                                     Senior Judge
                                                         Trial Court Cause No.
                                                         41D02-1103-DR-175



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018    Page 1 of 14
                                          Case Summary
[1]   Appellant-Respondent K.W. (“Father”) and Appellee-Petitioner C.W.

      (“Mother”) are the parents of K.W., Jr. (“the Child”). After the parties’

      divorce, Mother was granted custody of the Child and Father was awarded

      parenting time pursuant to the Indiana Parenting Time Guidelines (“IPTG”).

      On October 13, 2016, Mother filed a verified notice of intent to relocate to

      Belton, Missouri, with the Child to which Father objected. Following a two-

      day hearing on the matter, the trial court issued an order in which it granted

      Mother permission to relocate to Missouri with the Child. Father appeals from

      the trial court’s order. Finding no error in the trial court’s order, we affirm.



                            Facts and Procedural History
[2]   Mother and Father were previously married and are the parents of the Child.

      The Child was born on January 26, 2006. The parties’ marriage was dissolved

      by a divorce decree dated January 31, 2007. Following the parties’ divorce,

      Mother was granted primary physical custody of the Child and Father was

      granted parenting time pursuant to the IPTG.


[3]   The parties continued to reside in their respective residences in Franklin,

      Indiana, following their divorce. In April of 2012, Mother sought and received




      Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 2 of 14
      permission to relocate to Milton, Kentucky, with the Child.1 Mother and the

      Child returned to Franklin in May of 2014, after Mother’s employer added

      Indiana to her sales territory. At some point, Father remarried and, in February

      of 2016, moved to Noblesville.


[4]   On October 13, 2016, Mother filed a verified notice of intent to relocate with

      the Child to Belton, Missouri.2 In this notice, Mother indicated that she wished

      to relocate “because she is seeking promotion and greater financial opportunity

      with her employer …as well as following God’s call to join the Gospel

      Tabernacle Church … where she and [the Child] can thrive attending a good

      church and associating with good people.” Appellant’s App. Vol. II, p. 14.

      Mother proposed “a revised schedule of parenting time to be that which is

      agreed upon by the parties, subject to the [IPTG] where [d]istance is a [f]actor.”

      Appellant’s App. Vol. II, p. 14. On December 2, 2016, Father filed a verified

      objection to the proposed relocation of the Child.


[5]   The trial court conducted a two-day hearing on the matter on May 22, 2017 and

      June 26, 2017. On August 1, 2017, the trial court issued a detailed order

      allowing Mother to relocate to Missouri with the Child. The trial court




      1
       Father did not object to the relocation to Kentucky and continued to exercise parenting time with the Child
      while the Child resided in Kentucky.
      2
        Mother acknowledged before the trial court that since the parties’ divorce, she has sought permission to
      relocate on a number of occasions. Mother indicated that these attempts to relocate were made for the
      purpose of securing better employment opportunities and that these opportunities would have enabled her to
      better provide for the Child. The record reveals that one such request was denied, one was withdrawn by
      Mother, and one was for the aforementioned move to Kentucky.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018        Page 3 of 14
      specifically found that the evidence proved that the proposed relocation was

      requested in good faith for a legitimate reason and that the relocation was in the

      Child’s best interest. Father now appeals.



                                 Discussion and Decision
[6]   Initially, we note that Mother has not filed an Appellee’s brief in this matter.


              “When the appellee has failed to submit an answer brief we need
              not undertake the burden of developing an argument on the
              appellee’s behalf.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065,
              1068 (Ind. 2006). “Rather, we will reverse the trial court’s
              judgment if the appellant’s brief presents a case of prima facie
              error.” Id. (citing Gibson v. City of Indpls., 242 Ind. 447, 448, 179
              N.E.2d 291, 292 (1962)). “Prima facie error in this context is
              defined as, ‘at first sight, on first appearance, or on the face of
              it.’” Id. (citing Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct.
              App. 1999)). “Where an appellant is unable to meet this burden,
              we will affirm.” Id.


      Fifth Third Bank v. PNC Bank, 885 N.E.2d 52, 54 (Ind. Ct. App. 2008).


                                     I. Standard of Review
[7]   The trial court entered findings of fact and conclusions of law pursuant to

      Father’s request under Indiana Trial Rule 52(A).


              Our standard of review is well-settled:

                       [W]e must first determine whether the record
                       supports the factual findings, and then whether the
                       findings support the judgment. On appeal, we will
                       not set aside the findings or judgment unless they are
      Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 4 of 14
                 clearly erroneous, and due regard shall be given to
                 the opportunity of the trial court to judge the
                 credibility of witnesses. We therefore consider only
                 the evidence favorable to the judgment and the
                 reasonable inferences flowing therefrom, and we will
                 neither reweigh the evidence nor assess witness
                 credibility. A judgment is clearly erroneous when
                 there is no evidence to support the findings, the
                 findings do not support the judgment, or the trial
                 court applies the wrong legal standard to properly
                 found facts.

        M.S. v. C.S., 938 N.E.2d 278, 281–82 (Ind.Ct.App.2010)
        (quotations and citations omitted).…

        “In addition to the standard of review under Trial Rule 52, 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 has recently re-emphasized this
        principle, stating that we afford such deference because of trial
        judges’ “unique, direct interactions with the parties face-to-face.”
        Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “Thus enabled to
        assess credibility and character through both factual testimony
        and intuitive discernment, our trial judges are in a superior
        position to ascertain information and apply common sense,
        particularly in the determination of the best interests of the
        involved children.” Id.; see also Kirk v. Kirk, 770 N.E.2d 304, 307
        (Ind. 2002). Therefore, 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).


T.L. v. J.L., 950 N.E.2d 779, 783–84 (Ind. Ct. App. 2011).

Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 5 of 14
                            II. Legal Standard for Relocation
[8]    Under the relocation statutes, a relocating parent must file a notice of intent to

       relocate and send a copy of the notice to any nonrelocating parent. Ind. Code §

       31-17-2.2-1(a). If a nonrelocating parent objects to the relocation of the child,

       the parent must, not later than sixty days after the receipt of notice from the

       relocating parent, file a motion in opposition to the motion to relocate. Ind.

       Code § 31-17-2.2-5(a).


[9]    Once a nonrelocating parent has filed a motion in opposition to the relocation

       of the child, “[o]n the request of either party, the court shall hold a full

       evidentiary hearing to grant or deny a relocation motion[.]” Ind. Code § 31-17-

       2.2-5(b). During this hearing, “[t]he 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 individual meets the

       burden of proof under [Ind. Code § 31-17-2.2-5(c)], 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).


[10]   In considering the proposed relocation, the trial court shall take into account

       the following factors:


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

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

               (3) The feasibility of preserving the relationship between the
               nonrelocating individual and the child through suitable parenting
       Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 6 of 14
               time and grandparent visitation arrangements, including
               consideration of the financial circumstances of the parties.

               (4) Whether there is an established pattern of conduct by the
               relocating individual, including actions by the relocating
               individual to either promote or thwart a nonrelocating
               individual’s contact with the child.

               (5) The reasons provided by the:

                        (A) relocating individual for seeking relocation; and
                        (B) nonrelocating parent for opposing the relocation
                        of the child.

               (6) Other factors affecting the best interest of the child.


       Ind. Code § 31-17-2.2-1(b).


                                               III. Analysis
[11]   In challenging the trial court’s order allowing Mother to relocate with the

       Child, Father contends that the trial court erred in finding that Mother’s

       proposed relocation was being made for a legitimate purpose. Father

       alternatively contends that even if the proposed relocation was being made for a

       legitimate purpose, the trial court erred in finding that the proposed relocation

       was in the Child’s best interests.


                                       A. Legitimate Purpose
[12]   During the hearing, Mother indicated that her relocation to Belton, Missouri,

       would afford her potential opportunities for advancement with her employer

       that are not available to her in Indiana. At the time of the evidentiary hearing,


       Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 7 of 14
       Mother had been employed by Forberg Scientific, Inc. (“Forberg”) for

       approximately five years. Mother worked in outside sales, covering the State of

       Indiana. In relocating to Missouri, Mother would initially hold a similar sales

       position with Forberg as she did in Indiana. Mother, however, would have

       opportunities for advancement in Missouri and such opportunities are not

       available to her in Indiana.


[13]   Mother indicated that she is “stagnant in her job” in Indiana and does not have

       the potential for a promotion unless she relocates. Tr. Vol. II, p. 21. Mother

       described multiple opportunities for advancement that would likely be available

       to her with the next two or three years if she were to relocate to Missouri. She

       also indicated that there were opportunities for advancement with Forberg’s

       sister company in Missouri, although she would rather continue her

       employment with Forberg. Mother wishes to stay with and advance within

       Forberg because the company provides her the flexibility to set her schedule in a

       manner that allows her to best care for the Child.


[14]   The trial court considered the evidence relating to Mother’s desire to advance

       her career so to better provide financial flexibility for herself and the Child. The

       trial court concluded that Mother’s proposed relocation is made in good faith

       and for a legitimate purpose. In challenging the trial court’s conclusion, Father

       does not dispute that Mother has employment opportunities available to her in

       Missouri that are not available in Indiana. Father argues, however, that a

       potential employment opportunity is not a legitimate reason for Mother to

       relocate because Mother does not have a guaranteed offer of employment.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 8 of 14
       Thus, Father asserts that Mother’s proposed relocation “is premised on pure

       speculation.” Appellant’s Br. p. 14.


[15]   Contrary to Father’s assertion, the record reveals that Mother will have

       employment following her relocation to Missouri. The only speculation is to

       whether and how quickly Mother will advance in this employment.


[16]   In addition, Father points to no case law indicating that an opportunity for

       career advancement is not a legitimate reason for a proposed relocation, and

       relevant authority suggests otherwise. In T.L., the relocating parent indicated

       that she wanted to relocate to Tennessee because she desired to be closer to

       family and to take advantage of educational opportunities and career

       advancement opportunities available to her in Tennessee. 950 N.E.2d at 787.

       The relocating parent indicated that similar opportunities were not available to

       her in Indiana for financial reasons. Id. at 782, 787. It was clear from the facts

       of T.L. that the relocating parent had not obtained new employment but would

       first have to take advantage of the educational opportunities available to her.

       Id. at 782. Nevertheless, we concluded that the reasons provided by the

       relocating parent were legitimate and made in good faith. Id. at 787.


[17]   In reaching this conclusion, we noted that “it is common in our society that

       people move to live near family members, for financial reasons, or to obtain or

       maintain employment. We infer that these and similar reasons … are what the

       legislature intended in requiring that relocation be for legitimate and good faith

       reasons.” Id. at 787–88 (quotation marks omitted). Here, Mother’s job


       Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 9 of 14
       prospects are more certain than those discussed in T.L. In this case, Mother

       will have employment when she relocates and, upon relocation, will be in the

       position to take advantage of opportunities for advancement and higher

       compensation that are available to her in Missouri, but not Indiana. We

       conclude that this reason was a legitimate reason for relocating.


                                  B. Best Interests of the Child
[18]   With respect to the Child’s best interests, Mother indicated that she believes

       that the proposed relocation would “enrich [her and the Child’s] lifestyles.” Tr.

       Vol. II, p. 21. Mother noted that current conflict in her relationship with her

       parents is not healthy for the Child. She also noted that she and the Child had a

       nice lifestyle while they lived in Kentucky and were both “really happy.” Tr.

       Vol. II, p. 21. She believes the same would be true in Missouri.


[19]   Mother and the Child already have friends and acquaintances in Missouri.

       These friends and acquaintances include individuals who attend the church that

       Mother wishes to attend and former and current co-workers of Mother and their

       families. The Child enjoys his and Mother’s visits to Missouri and has “fit right

       in.” Tr. Vol. II, p. 24. Mother indicated that the Child lights “up when he’s

       there” and stated that she “want[s] that for him.” Tr. Vol. II, p. 24.


[20]   While Father claims that the Child is well-adjusted and has made a lot of

       friends in Franklin, Father could not name any of these friends and admitted

       that he and the Child “don’t talk about specific individuals.” Tr. Vol. II, p. 156.

       Nothing in the record indicates that the Child would not also adjust well to life

       Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 10 of 14
       in Missouri and the record indicates that the Child, through monthly visits to

       the area, has already begun to make friends there.


[21]   Historically, Father has not “exercise[d] full parenting time.” Tr. Vol. II, p. 11.

       This is true both while the parties all lived in Franklin and since Father has

       moved to Noblesville. Father sees the Child “on occasion” but never on a

       consistent basis. Tr. Vol. II, p. 11. Mother indicated that she “never knew

       when [Father] was going to see [the Child].” Tr. Vol. II, p. 11. In addition,

       since Mother and the Child moved back to Franklin and Father relocated to

       Noblesville, Father exercises parenting time “very rarely.” Tr. Vol. II, p. 13.

       Mother noted that the quantity of Father’s parenting time increased when she

       and the Child lived in Kentucky. She further indicated that she hoped that the

       proposed relocation would result in an increase in Father’s parenting time as it

       would allow Father to exercise parenting time pursuant to the IPTG where

       distance is a factor.


[22]   For his part, Father asserted that his employment as a manager of a Walmart

       store limits his ability to exercise regular parenting time. However, while it is

       undisputed that Father’s employment limits the days he has available to

       exercise parenting time, the record reveals that Father does not request to see

       the Child on his days off. He has not displayed a desire or willingness to put

       forth the effort to spend time with the Child in Franklin, to visit the Child’s

       school, or to attend the Child’s activities.




       Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 11 of 14
[23]   Some of Mother’s friends testified during the evidentiary hearing about

       Mother’s relationship with the Child. These friends have observed that Mother

       and the Child are “very close” and have “a very loving and affectionate bond.”

       Tr. Vol. II, p. 215. Mother and the Child are “always doing something activity

       wise” together. Tr. Vol. II, p. 215. One friend specifically described Mother as

       “a good parent, very stable.” Tr. Vol. II, p. 221.


[24]   Further, while Mother and the Child had previously maintained a close

       relationship with her family, as of the date of the evidentiary hearing, such was

       no longer the case. Mother testified that her prior decision to leave her parents’

       church created a problem with her relationship with her parents, specifically,

       her mother. Mother left her parents’ church because there were no children for

       the Child to interact with and because she did not agree with some of the

       church’s teachings. Mother testified that since leaving her parents’ church, she

       has “been told that [she and her parents] don’t have a relationship because [she

       does not] go to their church anymore.” Tr. Vol. II, p. 11. In further testifying

       about her deteriorating relationship with her parents, Mother indicated that “all

       [she] feel[s] there is [is] judgment and condemnation and [that she is] never

       good enough.” Tr. Vol. II, p. 244. Given the evidence outlining Mother’s

       deteriorating relationship with her parents, the trial court reasonably inferred

       that the nature of Child’s relationship with his grandparents would be impacted

       regardless of whether Mother and the Child relocated to Missouri.


[25]   Father does not dispute that the Child and Mother have a close bond and that

       Mother serves as a stabilizing force in the Child’s life. Father argues, however,

       Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 12 of 14
       that relocation is not in the Child’s best interests because it will make it more

       difficult for Father to maintain a close relationship with the Child and for the

       Child to maintain a close relationship with other family members living in

       Indiana, mainly Mother’s parents. The record reveals that Father’s actions

       while the Child resided in Indiana negatively impacted Father’s ability to

       maintain a close relationship with the Child. The trial court also specifically

       found that the parties’ respective financial situations are such that it would not

       be a financial burden to transport the Child between Missouri and Indiana for

       visitation with Father either by vehicle or airplane. Further, as we discussed in

       the paragraph above, the record also reveals that maternal grandparents’ access

       to and relationship with the Child will be diminished regardless of whether

       Mother and the Child reside in Missouri or Indiana.


[26]   Father also argues that while he may be entitled to more parenting time if

       Mother and the Child were to relocate, this time would not be as consistent as

       his parenting time if the Child were to remain in Indiana. The evidence

       indicates, however, that Father was currently inconsistent with the exercise of

       his parenting time with the Child. Father did not present any evidence

       suggesting that the inconsistent nature of his exercise of parenting time with the

       Child would change if Mother and the Child were to remain in Indiana.


[27]   Our review of the record reveals that Father has failed to take full advantage of

       his parenting time opportunities while living in close proximity with the Child.

       The evidence further demonstrates that the Child and Mother have a strong

       bond. It seems that so long as the Child resides with Mother, the Child appears

       Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 13 of 14
       able to smoothly transition to different living environments. Mother and the

       Child have already begun to build a sense of community in Missouri. One may

       reasonably infer from the record that this sense of community would increase

       following their permanent relocation to Missouri. Mother also has

       opportunities for career advancement in Missouri. These opportunities would

       provide her with a greater sense of financial freedom and enable her to better

       provide for the Child. Thus, in light of our preference for granting latitude and

       deference to our trial judges in family law matters, we conclude that the trial

       court did not err in finding that relocation was in the Child’s best interests.


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


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018   Page 14 of 14
