MEMORANDUM DECISION
                                                                          Jun 09 2015, 5:53 am
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.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Katharine Vanost Jones                                    Jonathan M. Young
Evansville, Indiana                                       Law Office of Jonathan M. Young, P.C.
                                                          Newburgh, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Andrew M. Shaw,                                          June 9, 2015

Appellant-Respondent,                                    Court of Appeals Case No.
                                                         87A04-1411-DR-527
        v.                                               Appeal from the Warrick Superior
                                                         Court.
                                                         The Honorable Keith A. Meier,
Tera A. Shaw,                                            Judge.
Appellee-Petitioner                                      Cause No. 87D01-1304-DR-440




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015          Page 1 of 14
[1]   Andrew Shaw (Father) appeals the trial court’s order granting the notice of

      intent to relocate filed by Tera Shaw (Mother). Father argues that 1) the trial

      court erred when it allowed Mother to relocate with their child over Father’s

      objection without a hearing; 2) the trial court violated Father’s rights under the

      Servicemembers Civil Relief Act1 when it denied his motion to enjoin Mother

      from relocating; 3) the trial court erred in allowing Mother to relocate when it

      was not in the best interest of Z.L.S.; and 4) the trial court erred when it entered

      a parenting time order that included an automatic forfeiture provision. We

      affirm.


                                                          Facts
[2]   Father and Mother were married on November 23, 2009. Their marriage

      produced one child, Z.L.S., born on October 31, 2010. In October 2012,

      Father, who is a member of the armed forces, was deployed to Korea. On April

      12, 2013, Mother filed her petition for dissolution of marriage. On August 29,

      2013, the trial court approved the parties’ mediated settlement agreement and

      summary decree of dissolution. According to the agreement, Mother had

      primary physical custody of Z.L.S., while the parties shared modified joint legal

      custody, with Mother having the final say after considering Father’s input. The

      agreement provided that when Father returned to Indiana, “the legal custody




      1
          This Act was formerly known as the Soldiers’ and Sailors’ Civil Relief Act.


      Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 2 of 14
      arrangement shall automatically modify to joint custody.” Appellant’s App. p.

      41.


[3]   In December 2013, Mother and Z.L.S. flew to the state of Washington to stay

      with David Brown. Mother took suitcases and Z.L.S.’s puppy with her.

      Mother and Brown were married on December 13, 2013.2 On January 8, 2014,

      Mother filed her notice of intent to relocate, which stated that she intended to

      relocate to Washington on or about March 7, 2014. At a hearing on July 10,

      2014, Mother testified that she did not file her notice of intent to relocate before

      she arrived in Washington because she did not know that her visit was going to

      become permanent and that she did not bring her car or most of her personal

      property with her when she left for Washington in December 2013. Father was

      deployed overseas when he received the notice of intent to relocate.


[4]   On January 24, 2014, Father filed a motion to stay a trial court order modifying

      child support. On January 31, 2014, the trial court set a hearing date of

      February 14, 2014. On February 3, 2014, with agreement of the parties, the

      February 14 hearing date was vacated and reset for June 27, 2014.


[5]   Father filed an objection to relocation on February 24, 2014, requesting that

      Mother be enjoined from relocating pending a hearing. In his objection,

      however, he did not request a preliminary hearing on the matter nor did he ask




      2
       In its order, the trial court states that Mother and Stepfather were married on December 8, 2013, but
      Mother testified that they were married on December 13, 2013. Tr. p. 68.

      Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015               Page 3 of 14
      for custody of Z.L.S. Instead he requested that the matter be heard on June 27,

      2014. On February 25, 2014, the trial court issued an order stating that a

      hearing would be held on the matter, also on June 27, 2014. The trial court

      neither gave permission to nor prevented Mother from staying in Washington.

      On March 5, 2014, Mother filed a motion for a continuance. The continuance

      was granted and the hearing was reset for July 10, 2014.


[6]   Father returned to Indiana on June 10, 2014. A hearing was held on July 10,

      2014, and August 19, 2014. On October 13, 2014, the trial court issued its

      order granting Mother’s request to relocate. In its order, the trial court sua

      sponte issued findings of fact and conclusions of law. The trial court noted that

      Mother had failed to timely filed a notice of intent to relocate, but it determined

      that Mother had acted in good faith in relocating and that the relocation was

      done for a legitimate reason. It also found that the current custody

      arrangement was in the best interest of Z.L.S. and that Mother would retain

      primary physical custody. In regards to parenting time, the trial court

      determined that father was required to notify Mother in writing at least ninety

      days prior to the first day of his selected visitation to inform her of the date and

      time he would pick up Z.L.S. Father now appeals.


                                   Discussion and Decision
                                      I. Standard of Review
[7]   Father argues that the trial court erred when it allowed Mother to relocate.

      When the trial court enters findings sua sponte, the specific findings control

      Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 4 of 14
      only as to the issues they cover, while a general judgment standard applies to

      any issue upon which the court has not found. Julie C. v. Andrew C., 924 N.E.2d

      1249, 1255 (Ind. Ct. App. 2010). The specific findings will not be set aside

      unless they are clearly erroneous, and we will affirm the general judgment on

      any legal theory supported by the evidence. Id. A finding is clearly erroneous

      when there are no facts or inferences drawn therefrom that support it. Id. at

      1255–56. In reviewing the trial court’s findings, we neither reweigh the

      evidence nor judge the credibility of the witnesses. Id. at 1256. Rather, we

      consider only the evidence and reasonable inferences drawn therefrom that

      support the findings. Id.


[8]   In addition, we review custody modifications for abuse of discretion, with a

      preference for granting latitude and deference to our trial judges in family law

      matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). We set aside judgments

      only when they are clearly erroneous, and we will not substitute our own

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

      judgment. Id. Therefore, on appeal it is not enough that the evidence might

      support some other conclusion; rather, the evidence must positively require the

      conclusion contended for by appellant before there is a basis for reversal. Id.


                              II. Notice of Intent to Relocate
[9]   Father first argues that the trial court erred when it summarily allowed Mother

      to relocate. He maintains that the trial court was required to hold a hearing and

      make findings to support its decision as required by Indiana Code section 31-17-


      Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 5 of 14
       2.2-6(b). Father is correct that, pursuant to Indiana Code section 31-17-2.2-

       1(a), a relocating parent must file a notice of intent to relocate and send a copy

       of that notice to the nonrelocating parent. This notice of intent is required to be

       sent no later than ninety days before the date the relocating parent intends to

       move, or, if the relocating individual is unable to provide the information at

       that time, no later than thirty days before the intended relocation. I.C. § 31-17-

       2.2-3. A nonrelocating parent may object to the intended relocation in one of

       two ways: by filing a motion to modify the custody order or by filing, within

       sixty days of receipt of the notice of intent to relocate, a motion to prevent the

       relocation of the child. T.L. v. J.L., 950 N.E.2d 779 (Ind. Ct. App. 2011). Upon

       request of either party, the trial court shall hold a full evidentiary hearing to

       grant or deny a motion to prevent relocation of the child. I.C. § 31–17–2.2–

       5(b).


[10]   Father argues that the trial court erred when it did not enjoin Mother from

       relocating to Washington pending the July 10, 2014, hearing on the matter. He

       argues that the trial court was required to hold a preliminary hearing to

       determine whether to grant his request for a preliminary order to enjoin Mother

       from relocating. He states that the trial court failed to follow the required

       procedure before denying a nonrelocating parent’s request to prohibit

       relocation.


[11]   However, this argument mischaracterizes the trial court’s actions. The trial

       court did not deny Father’s request to prohibit Mother from relocating without

       a hearing. Indeed, it was not until after a July 10, 2014, hearing on the matter

       Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 6 of 14
       that the trial court reached its conclusion. It did not, however, grant Father’s

       request that Mother be enjoined from relocating until the hearing. However,

       the trial court did not permit mother to relocate to Washington; she went to

       Washington without the leave of the trial court. It neither gave permission to

       nor prevented Mother from staying in Washington.


[12]   We do recognize that Mother failed to correctly file her notice of intent to

       relocate. She was required, pursuant to Indiana Code section 31-17-2.2-3, to

       send that notice to Father at least thirty days before relocating.


[13]   However, we also note that Father did not request a preliminary hearing.

       Instead, he requested that the matter be dealt with at the hearing set for June

       27, later continued to July 10. Father did not request an earlier hearing,

       although one was scheduled for February 14, and Father could have been

       represented by counsel at that hearing. Father was out of the country at the

       time he filed his objection to the intent to relocate, and Mother had recently

       married in Washington. The trial court could have enjoined Mother from

       staying in Washington with Z.L.S., but she was the only parent currently able

       to care for Z.L.S. Furthermore, Father did not request custody of Z.L.S., again

       meaning that Mother was the only parent able to care for her. Under these

       circumstances, we do understand that the trial court was placed in a difficult

       position. While it is possible the trial court may have been able to find a better

       solution in this situation, we cannot think of what that solution might have

       been. Therefore, we do not find that the trial court erred by allowing the

       situation to remain as it was until the July 10, 2014, hearing.

       Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 7 of 14
                           III. The Servicemembers Relief Act
[14]   Father next argues that the trial court violated his rights under the

       Servicemembers Civil Relief Act when it failed to enjoin Mother from

       relocating to Washington. The Servicemembers Civil Relief Act was “enacted

       to protect those who have been obliged to drop their own affairs to take up the

       burdens of the nation from exposure to personal liability without an

       opportunity to appear and defend in person or through counsel.” Collins v.

       Collins, 805 N.E.2d 410, 414 (Ind. Ct. App. 2004) (internal quotations

       removed). Section 522 of the Act provides that it applies to any civil action or

       proceeding, including any child custody proceeding, in which the plaintiff or

       defendant at the time of filing an application under this section 1) is in military

       service or is within 90 days after termination of or release from military service,

       and 2) had received notice of the action or proceeding. Section 522 grants court

       the authority, if certain conditions are met, to stay a proceeding in which a

       servicemember is a party: “at any stage before final judgment in a civil action or

       proceeding in which a servicemember described in subsection (a) is a party, the

       court may on its own motion and shall, upon application by the servicemember,

       stay the action for a period of not less than [ninety] days.” 50 App. U.S.C. §

       522.


[15]   Father argues that, as the trial court was aware that he was in the military and

       deployed overseas, it erred when it denied his request to enjoin Mother from

       relocating to Washington. Father argues that he was harmed when the trial

       court allowed Mother to relocate without a hearing.

       Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 8 of 14
[16]   Father again mischaracterizes the trial court’s actions in this case. We note that

       the trial court did not allow Mother to relocate. Mother traveled to

       Washington without leave of the trial court. The decision to allow Mother to

       relocate was not made until after the July 10 hearing. Father did not request a

       preliminary hearing on his request to enjoin mother from staying in

       Washington pending a hearing on the relocation. Father could have been

       represented by counsel at a preliminary hearing, but instead, he asked that the

       trial court set a hearing on the matter for June 27, 2014. Here, the trial court

       did not make any decisions regarding relocation until after the hearing on July

       10, 2014, and, therefore, it did not violate Father’s rights under the

       Servicemembers Relief Act.


                                   IV. Best Interest of Z.L.S.
[17]   Father also argues that the trial court erred in allowing Mother to relocate

       because relocation was not in the best interest of Z.L.S. As noted above, we

       will set aside judgments in custody modifications only when they are clearly

       erroneous, and we will not substitute our own judgment if any evidence or

       legitimate inferences support the trial court's judgment. Dixon v. Dixon, 982

       N.E.2d 24, 26 (Ind. Ct. App. 2013). Under the relocation statute, a trial court

       must make two inquiries:

               First, the relocating parent must establish that the relocation is being
               made in good faith and for a legitimate reason. Ind. Code § 31–17–
               2.2–5(c). If the relocating parent satisfies that burden, the burden shifts
               to the non-relocating parent to show that the proposed relocation is not
               in the best interests of the child. I.C. § 31–17–2.2–5(d). In general, the
               trial court must consider the financial impact of relocation on the
       Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 9 of 14
               affected parties and the motivation for the relocation in addition to the
               effects on the child, parents, and others, such as siblings or other
               persons who may significantly affect the children’s best interests, as
               relevant to every change of custody.
       Id.


       In addition, pursuant to Indiana Code section 31-17-2.2-1, the trial court shall

       consider 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 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.
       Father maintains that the trial court erred in its consideration of these factors.


[18]   Father focuses his argument on two issues: 1) he argues that the trial court did

       not adequately consider Z.L.S.’s interaction and relationships with parents,

       extended family, friends, and other persons, and 2) he claims that the trial court

       failed to consider the hardship of the relocation upon Father's parenting time

       with Z.L.S.

       Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 10 of 14
[19]   Here, the trial court specifically noted that it “considered the factors set forth in

       I.C. 31-17-2.2-1 and 31-17-2-8, judged the best interest of the Child and the

       other conditions and circumstances in the context of the whole environment.”

       Appellant’s App. p. 11. In addition, the trial court noted that “there exist

       certain favorable and unfavorable aspects to each of the [parties’] lives and

       circumstances.” Id. It then determined that, based upon the facts of this case,

       “the evidence does not support the conclusion that relocation is not in the best

       interest of the Child. The current custody arrangement is in the best interest of

       the child.” Id. While the trial court noted that Mother failed to timely file her

       notice of intent to relocate, it also noted that Father had failed to do so in the

       past and found that Mother had a good faith and legitimate reason for

       relocating.


[20]   Regarding Z.L.S.’s interaction and relationships with her parents and extended

       family, the record shows that Mother has always been Z.L.S.’s primary physical

       caretaker. Z.L.S. has moved several times throughout her short life, and we

       note that Mother has been the one constant in her life. While Father is correct

       that Z.L.S. does have extended family in Indiana, Z.L.S. had spent only a year

       in Indiana while Mother lived with her parents. The record shows that Mother

       has ensured that Z.L.S. maintains a close relationship with her maternal

       grandmother through technological means such as Skype. Paternal

       grandmother also stated that Mother has helped to ensure that Z.L.S. stays in

       contact while in Washington. Under these circumstances, we cannot say that




       Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 11 of 14
       the trial court abused its discretion by finding that relocation was in the best

       interest of Z.L.S.


[21]   Regarding the hardship to Father, while we recognize that Washington is far

       from Indiana, the record shows that Mother is willing to facilitate contact

       between Father and Z.L.S. The trial court recognized that there would be costs

       and inconveniences for Father in exercising parenting time, but found that there

       would not be extreme hardship and expense. The trial court noted that Mother

       and Brown have also offered to help defray the cost of travel with the “space

       available” program available to Brown because he is a member of the active

       duty Guard and Reserve. Id. at 13. The program would allow for tickets to be

       purchased at $30 or $40 a person. The trial court ordered that the parties

       cooperate in using the “space available” program. Id. Clearly, the trial court

       considered the hardship to Father and determined that the hardship and

       expense was not such that Mother should be prevented from relocating. We

       find that the trial court adequately considered the required factors and that it

       did not err in allowing Mother to relocate.


                        V. Advance Notice of Parenting Time
[22]   Father also argues that the trial court erred when it required him to give Mother

       ninety days advance notice of the date and time he will pick up Z.L.S. for

       parenting time. He maintains that the trial court should not have ordered that

       his parenting time would be forfeited if he failed to give notice.




       Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 12 of 14
[23]   Father argues that the automatic forfeiture of his parenting time is a restriction

       in violation of Indiana Code section 31-17-4-2, which provides:

               The court may modify an order granting or denying parenting time
               rights whenever modification would serve the best interests of the
               child. However, the court shall not restrict a parent’s parenting time
               rights unless the court finds that the parenting time might endanger the
               child’s physical health or significantly impair the child’s emotional
               development.”
       Father maintains that the trial court did not find that parenting time might

       endanger Z.L.S.’s physical health or impair her emotional development and

       that, therefore, the trial court erred in ordering the ninety-day notice

       requirement.


[24]   We find that the notice requirement is not a restriction of the kind contemplated

       by Indiana Code section 31-17-4-2. The notice requirement was put in place

       because the trial court was taking into account the fact that visitation in this

       case will require cross-country travel. Furthermore, Father provides no

       authority for the proposition that forfeiture for failure to follow a notice

       requirement is a restriction of parenting time as anticipated by Indiana Code

       section 31-17-4-2. Therefore, we do not find that the trial court erred in

       imposing a notice requirement.




       Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 13 of 14
[25]   The judgment of the trial court is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A04-1411-DR-527 | June 9, 2015   Page 14 of 14
