                                                                                     FILED
                                                                                May 31 2018, 10:08 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Darlene R. Seymour                                        Janice Mandla Mattingly
      Bryan L. Ciyou                                            Janice Mandla Mattingly, P.C.
      Ciyou & Dixon, P.C.                                       Carmel, Indiana
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Marva Deskins Hamilton,                                   May 31, 2018
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                29A02-1710-DR-2428
              v.                                                Appeal from the Hamilton Superior
                                                                Court
      Michael Hamilton,                                         The Honorable Jonathan M.
      Appellee-Respondent.                                      Brown, Judge
                                                                Trial Court Cause No.
                                                                29D02-1610-DR-9293



      Pyle, Judge.


                                        Statement of the Case
[1]   Marva Deskins Hamilton (“Mother”) appeals the child custody order entered

      following the dissolution of her marriage to Michael Hamilton (“Father”).

      Mother specifically argues that the trial court abused its discretion in awarding



      Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018                            Page 1 of 11
      primary physical custody of their daughter, L.H., to Father. Finding no abuse

      of the trial court’s discretion, we affirm the trial court’s judgment.


[2]   We affirm.


                                                      Issue
              Whether the trial court abused its discretion in awarding primary
              physical custody of L.H. to Father.


                                                      Facts
[3]   When Mother and Father began dating in 2011, Mother lived in Maryland with

      her fourteen-year-old daughter, I.D., and Father lived in Indianapolis. Father

      visited Mother regularly in Maryland but told her that he would never move

      because he was actively involved in the life of his three-year-old son, I.H., who

      lived in Indianapolis. I.H. spent three to four nights per week and every third

      weekend with Father.


[4]   Mother and Father eventually married in June 2013. Mother continued to live

      in Maryland with I.D., and Father continued his regular visits. In March 2014,

      Mother gave birth to the parties’ daughter, L.H. Father was present for the

      birth and stayed with Mother, L.H., and I.D. for two weeks after L.H.’s birth.

      Four months later, Mother, I.D., and L.H. moved to Indianapolis. Mother and

      Father eventually purchased a home in Hamilton County where I.H. attended

      school.




      Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018   Page 2 of 11
[5]   Mother, an attorney, obtained employment at a law firm, where she earned an

      annual base salary of $120,000, with the potential to earn an additional $30,000

      in annual performance bonuses for reaching certain employment-related goals.

      Father is a firefighter/emergency medical technician who works a twenty-four-

      hour shift every third day. He earns $80,000 per year.


[6]   The parties shared household responsibilities during their marriage. Father

      frequently took L.H. to daycare and picked her up at the end of the day. On

      Father’s days off from the firehouse, he fixed dinner, supervised homework,

      and got L.H. ready for bed. He was familiar with the pediatrician’s

      recommendations for L.H.’s asthma treatment in the event she had difficulty

      breathing. L.H. was very close to both her brother, I.H., and her sister, I.D.

      Father’s parents, who lived nearby, were actively involved in all of the

      children’s lives and provided transportation for the children on the days that

      both parents worked.


[7]   In October 2016, Mother filed a petition for legal separation, and in November

      2016, Father filed a petition for dissolution. On March 7, 2017, the parties

      entered into an agreed preliminary order regarding parenting time with three-

      year-old L.H. and distribution of the parties’ property. Later that month,

      Mother filed a notice of intent to relocate to Maryland and a request for a final

      custody hearing, wherein Mother advised Father and the trial court that she

      intended to relocate to Maryland with L.H. by July 1, 2017. Father filed an

      objection to the relocation and a petition for physical custody of L.H. in April

      2017.

      Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018    Page 3 of 11
[8]   The trial court held a three-day hearing on custody, child support, and

      parenting time in June and July 2017.1 Testimony at the hearing revealed that

      in October 2016, Mother learned that her former federal government job in

      Maryland might be available. Without telling Father, Mother began

      researching schools in the Maryland area and applied for L.H. to attend the

      Langley School (“Langley”), a private school, which is located in Virginia and

      offers foreign languages, art, and music. In early March 2017, Mother received

      notice that L.H. had been accepted at Langley and had received a considerable

      financial aid package. Mother visited Maryland later in March 2017 for a job

      interview, and while she was there, she took L.H. to visit Langley. Thereafter,

      Mother placed a deposit at Langley to hold L.H.’s spot. Mother never

      mentioned Langley to Father.


[9]   Mother further testified that she had not been happy with her law firm job in

      Indianapolis and had never met the billable hour requirement. She planned to

      return to her former job and house in Maryland less than a week after the

      hearing. She had already sent all of her belongings to Maryland, and they were

      in a storage facility. Mother explained that because of the flexible alternative

      work schedules and hours, government holidays and vacation policy, she would

      have flexibility in her job to spend more time with L.H. She would earn

      $146,000 per year. According to Mother, she also had church, family, and

      educational contacts in the Maryland area. Mother further testified that L.H.



      1
          The parties entered into a final settlement agreement regarding the distribution of their personal property.


      Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018                               Page 4 of 11
       had a close bond with both I.H. and I.D., and that I.D. would be attending

       college in New Jersey in the fall. Mother admitted that, although she had

       always discussed the choice of schools for I.D. with I.D.’s father, she had not

       discussed Langley with Father. During cross-examination, Mother admitted

       that she had not investigated schools or government jobs in the Indianapolis

       area. She also told the trial court that she planned to move to Maryland

       “whether [the] court award[ed] custody to [her] or not.” (Tr. 160).


[10]   Father testified that he would not be able to move to Maryland because of his

       relationship with I.H. He expressed concern that if Mother relocated to

       Maryland, she would not communicate with him about L.H. He told the trial

       court that his parents would help him with L.H. on the days that he had to

       work and that L.H. would be his primary focus if he was awarded physical

       custody of her.


[11]   At the end of the hearing, the trial court stated as follows:


               I’ll tell you one thing that stuck out at me that bothers me, then
               I’ll get to my order. And the thing that bothers me is that in
               January, I think it was, that [Mother] was looking for a school
               for her daughter in the D.C. area. Yeah, that occurred before a
               job interview. Yeah, that occurred before she had a job offer.
               But I feel like that [Mother] already has both feet out the door, all
               her stuff is already in D.C., decisions were already made, and at
               this point it’s whether or not I basically rubberstamp [Mother’s]
               decision to move to Washington, D.C. with [L.H.] And the
               other factor that I found concerning was that when asked
               specifically about school decisions for [I.D.], [Mother] indicated
               she always - she specifically said always - talked to [I.D.’s father]
               about enrolling [I.D.] wherever she was going to put her in

       Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018     Page 5 of 11
               school, whether it be in the District area, or if it was - when she
               was in kindergarten or when she went to Carmel High School.
               She always contacted [I.D.’s father] . . . . We have an effort, at
               this point, where she’s not extended that same courtesy to
               [Father] with regards to a child that is three years old and trying
               to move the child out of state. I find that problematic . . . . So I
               just want the parties to know that I care about your situation. I
               have agonized about this since I first met the two of you . . . like,
               two weeks ago . . . . But the thing is, is that this is tough. I do - -
               as I told the lawyers this morning, I don’t have a situation where
               both of you are - - or one of you is a bad person. At no point
               have I heard anything that leads me to believe that - - anything
               other than you both love your daughter, you both want what’s
               best for her, you both want each other involved with her life.
               That puts me in a horrible place. The person who loses the most,
               no matter what I decide, is [L.H.] . . . I will agonize over this for
               the next few weeks, while I wait on the findings from everybody.
               But, you know, I mean, I think that there’s some that think that
               judges don’t care about what happens in their cases. I promise
               you I’m not one of those . . . .


       (Tr. Vol. 3 at 68-69).


[12]   In October 2017, the trial court issued a detailed thirty-seven-page dissolution

       order that awarded Father physical custody of L.H., thereby denying Mother’s

       request to relocate the child to Maryland. Mother now appeals.


                                                    Decision
[13]   Mother argues that the trial court abused its discretion when it awarded primary

       physical custody of L.H. to Father. We disagree.




       Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018       Page 6 of 11
[14]   At the outset, we note that Father requested the trial court to enter findings of

       fact and conclusions thereon pursuant to Trial Rule 52(A). We therefore apply

       the following two-tiered standard of review: we first determine whether the

       evidence supports the findings of fact and then determine whether the findings

       of fact support the judgment. Troyer v. Troyer, 987 N.E.2d 1130, 1134 (Ind. Ct.

       App. 2013), trans. denied. We will set aside findings if they are clearly

       erroneous, which occurs only when the record contains no facts to support

       them either directly or by inference. Campbell v. Campbell, 993 N.E.2d 205, 209

       (Ind. Ct. App. 2013), trans. denied.


[15]   We further note that there is a well-established preference in Indiana “‘for

       granting latitude and deference to our trial judges in family law matters.’” Steele-

       Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of

       Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). In this regard, the Indiana

       Supreme Court has explained as follows:


               Appellate deference to the determinations of our trial court
               judges, especially in domestic relations matters, is warranted
               because of their unique, direct interactions with the parties face-
               to-face, often over an extended period of time. 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.


       Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). It is not enough on appeal that the

       evidence might support some other conclusion; rather, the evidence must

       Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018       Page 7 of 11
       positively require the result sought by the appellant. D.C. v. J.A.C., 977 N.E.2d

       951, 957 (Ind. 2012). Accordingly, we will not substitute our own judgment if

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


[16]   In an initial custody determination, both parents are presumed equally entitled

       to custody, and “[t]he court shall determine custody and enter a custody order

       in accordance with the best interests of the child.” I.C. § 31-17-2-8. There is no

       presumption favoring either parent. 2 I.C. § 31-17-2-8. See also Kondamuri v.

       Kondamuri, 852 N.E.2d 939, 945 (Ind. Ct. App. 2006). In determining the

       child’s best interests, the trial court must consider all relevant factors, including

       specifically the following:


                (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; and




       2
         To the extent that Mother argues that she should have been awarded physical custody of LH. because L.H.
       is a young girl, we note that Father correctly points out that the “Maternal Preference Rule (sometimes
       known as the Tender Years Doctrine) has been prohibited for decades.” (Father’s Br. at 21). The purpose of
       this “statute prohibiting such presumptions is to overcome . . . the maternal preference rule followed in many
       cases where the mother has been given preference particularly as to custody of children of tender years or
       female children.” D.H. v. J.H., 418 N.E.2d 286, 290 (Ind. Ct. App. 1981).

       Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018                           Page 8 of 11
                        (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. The trial court’s decisions on child custody are reviewed only

       for an abuse of discretion. Sabo v. Sabo, 858 N.E.2d 1064, 1068 (Ind. Ct. App.

       2006).


[17]   Further, INDIANA CODE § 31-17-2.2-2(a) provides that “if a party provides

       notice of relocation at an initial hearing to determine custody, the court may

       consider the factors set forth in this chapter in the court’s initial custody

       determination.” Those relocation factors are as follows:


                (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 | Opinion 29A02-1710-DR-2428 | May 31, 2018     Page 9 of 11
               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.


       I.C. § 31-17-2.2-1(b). In addition, INDIANA CODE § 31-17-2.2-5(c) provides that

       the relocating parent has the burden to prove that the proposed relocation is

       made in good faith and for a legitimate reason.


[18]   Here, our review of the trial court’s order and the evidence reveals that both

       parents have actively co-parented L.H. and are competent to handle L.H.’s

       medical issues. L.H.’s family support system has been established in Indiana,

       and L.H. is very close to her paternal grandparents. Further, although L.H. is

       close to both of her siblings, she will have more opportunities to maintain her

       bond with her brother, I.H., than she will with her sister, I.D. because I.D.

       currently attends college in New Jersey. In addition, it would be nearly

       impossible to foster the brother-sister bond between L.H. and I.H. if L.H.

       moved to Maryland. We further note that Mother did not attempt to find

       alternative employment in the Indianapolis area in order to preserve the

       Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018   Page 10 of 11
       existing family bonds and did not advise Father of her interest in returning to

       Maryland until she had filed her notice of intent to relocate. She did not

       involve Father in the school application process or inform him that she was

       applying for L.H.’s enrollment at Langley. In fact, Father had never heard of

       Langley until the final hearing. Mother has clearly not extended the same

       courtesies to Father that she has previously extended to I.D.’s father. In

       addition, Mother attempted to minimize Father’s parental contributions

       because he is not as detail-oriented as Mother is. However, we agree with the

       trial court that although each parent has a different parenting style, both styles

       have a place in the development of a child. We further note that distance is a

       major factor in the case. It is an eight to ten-hour drive from Indianapolis to

       Maryland, and with Father’s work schedule, the distance would create a

       substantial hardship on Father exercising parenting time with L.H. Because

       Mother’s new job offers a flexible schedule and increased earing capacity, it

       would be less of a hardship for Mother to visit L.H. in Indianapolis than for

       Father to visit her in Maryland. This evidence supports the trial court’s award

       of primary physical custody of L.H. to Father. The trial court did not abuse its

       discretion.


[19]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 29A02-1710-DR-2428 | May 31, 2018   Page 11 of 11
