MEMORANDUM DECISION
                                                            May 27 2015, 10:17 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
David P. Murphy                                          Michael E. Boring
David P. Murphy & Associates, P.C.                       Boring & Boring, P.C.
Greenfield, Indiana                                      New Palestine, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Sophia L. Masters,                                       May 27, 2015

Appellant-Respondent,                                    Court of Appeals Cause No.
                                                         30A04-1410-DR-488
        v.                                               Appeal from the Hancock Superior
                                                         Court
                                                         Cause No. 30D01-1205-DR-1134
Ryan E. Masters,
Appellee-Petitioner.                                     The Honorable Terry K. Snow,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015    Page 1 of 12
                                             Case Summary
[1]   Sophia Masters appeals the trial court’s modification of physical custody of the

      couple’s two children to her ex-husband, Ryan Masters. We affirm.


                                                    Issues
[2]   Sophia raises one issue, which we restate as whether the trial court properly

      awarded Ryan physical custody of the couples’ children. Ryan raises one issue,

      which we restate as whether he should be awarded appellate attorney fees.


                                                    Facts
[3]   M.M. was born in August 2008, and Ryan and Sophia were married in October

      2008. They separated in February 2009, and Ryan petitioned for dissolution in

      July 2009. D.M. was born in November 2009. Initially, Ryan and Sophia

      agreed that they would have joint legal custody, with Sophia having primary

      physical custody and Ryan having parenting time. Shortly thereafter, the

      parties agreed to modify the custody arrangement with them sharing joint legal

      and physical custody and equal parenting time. They also agreed to work

      around each other’s schedules, which was an issue for Ryan, who is a

      firefighter. The modification agreement also provided, “In the event that

      Mother would be deployed and/or relocated in preparation of deployment,




      Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015   Page 2 of 12
      [D.M.][1] would live with Father primarily until such time as Mother returns.”

      App. p. 29. Ryan lived in New Palestine.


[4]   Sophia, a member of the United States Army Reserve, did not have steady

      employment and applied to the Active Guard Reserve (“AGR”) program with

      the Army. Although there were positions posted in Indianapolis, Sophia did

      not have the ability to select where she would be located. On April 22, 2014,

      Sophia was ordered to active duty as an emergency care sergeant in Winston

      Salem, North Carolina for a three-year period. The next day, Sophia filed a

      notice of intent to relocate, requesting that she have custody of the children

      while they were in school, with Ryan having parenting time over extended

      breaks, holidays, and the entire summer break. Ryan objected to the move.


[5]   On May 14, 2014, a hearing was held to address Sophia’s relocation.

      Following the hearing, the court found in part:

              3. Under the Relocation Statute, the Court finds that the Mother’s
              relocation to North Carolina is in good faith and for a legitimate
              reason.
              4. On the Mother having successfully showing the legitimacy of her
              move, the burden shifts to the Father to show that the relocation is not
              in the best interest of the children.
                                                     *****
              10. Court finds that IC 31-17-2-21.3 restricting the Court’s authority to
              change custody due to active duty service of a parent must be read in
              the context of the relocation statute and that said statute clearly



      1
        The settlement and modification agreements only specifically addressed D.M. The parties do not dispute
      that the custody arrangement for M.M. was the same.

      Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015            Page 3 of 12
              anticipates relocation by the parent for active duty such as deployment
              not merely a change of station in the United States.
              11. Court finds that the active duty move was a voluntary act on
              behalf of the Mother who could of [sic] restricted her application for
              AGR positions to the central Indiana area but chose not to do so.
      Id. at 38-39. The trial court ordered Sophia not to remove the children from

      Indiana without approval and stated that, upon her relocation to North

      Carolina, the trial court would entertain a motion for modification of custody

      filed by Ryan.


[6]   Sophia moved to North Carolina, and the children remained in Indiana with

      Ryan. On September 8, 2014, the trial court conducted a hearing on Ryan’s

      motion to modify custody. Following the hearing, the trial court issued an

      order incorporating the May 14, 2014 order and the evidence taken at the

      earlier hearing. The trial court found in part:

              The Court acknowledges that it is generally desirable to have
              daughters in the care of a caring Mother as they grow up. This factor
              weighs heavily in the Court’s decision in this case. However, the
              Court finds stability in home community and close ties with family
              and extended family are clearly in the best interest of the children and
              outweigh the daughter-maternal bond. The Court finds specifically
              that it is in the best interest of these two children, that they remain in
              Father’s custody in Indiana.
      Id. at 10-11. The trial court awarded Ryan physical custody of the children and

      awarded Sophia parenting time. Sophia now appeals.




      Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015   Page 4 of 12
                                                  Analysis
                                       I. Modification of Custody

[7]   Sophia contends that the trial court failed to properly consider Indiana Code

      Section 31-17-2-21.3 when it denied her request to take the children with her to

      North Carolina and modified custody in favor of Ryan. Here, the trial court

      issued findings of fact sua sponte. In such a situation, the specific factual

      findings control only the issues that they cover, and a general judgment

      standard applies to issues upon which there are no findings. Stone v. Stone, 991

      N.E.2d 992, 998 (Ind. Ct. App. 2013), aff’d on reh’g. “It is not necessary that

      each and every finding be correct, and even if one or more findings are clearly

      erroneous, we may affirm the judgment if it is supported by other findings or is

      otherwise supported by the record.” Id. We may affirm a general judgment

      with sua sponte findings on any legal theory supported by the evidence. Id. In

      reviewing the accuracy of findings, we first consider whether the evidence

      supports them. Id. We then consider whether the findings support the

      judgment. Id. “We will disregard a finding only if it is clearly erroneous, which

      means the record contains no facts to support it either directly or by inference.”

      Id.


[8]   A judgment also is clearly erroneous if it relies on an incorrect legal standard,

      and we will not defer to a trial court’s legal conclusions. Id. at 998-99. We give

      due regard to the trial court’s ability to assess the credibility of witnesses and

      will not reweigh the evidence, and we must consider only the evidence most

      favorable to the judgment along with all reasonable inferences drawn in favor of

      Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015   Page 5 of 12
      the judgment. Id. at 999. Additionally, we “‘give considerable deference to the

      findings of the trial court in family law matters . . . .’” Id. (quoting MacLafferty

      v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)). This deference is a reflection

      that the trial court is in the best position to judge the facts, ascertain family

      dynamics, and judge witness credibility. Id. “‘But to the extent a ruling is

      based on an error of law or is not supported by the evidence, it is reversible, and

      the trial court has no discretion to reach the wrong result.’” Id. (quoting

      MacLafferty, 829 N.E.2d at 941).


[9]   Generally, when a parent seeks to relocate, Indiana Code Section 31-17-2.2-1

      provides:

              (a) A relocating individual must file a notice of the intent to move with
              the clerk of the court that:
                      (1) issued the custody order or parenting time order; or
                      (2) if subdivision (1) does not apply, has jurisdiction over the
                      legal proceedings concerning the custody of or parenting time
                      with a child;
              and send a copy of the notice to any nonrelocating individual.
              (b) Upon motion of a party, the court shall set the matter for a hearing
              to review and modify, if appropriate, a custody order, parenting time
              order, grandparent visitation order, or child support order. The court
              shall take into account the following in determining whether to modify
              a custody order, parenting time order, grandparent visitation order, or
              child support order:
                      (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,
      Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015   Page 6 of 12
                         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.
                (c) The court may award reasonable attorney’s fees for a motion filed
                under this section in accordance with IC 31-15-10.
[10]   Sophia argues that, in modifying custody, the trial court failed to properly

       consider Indiana Code Section 31-17-2-21.3, which provides:

                (a) A court may not consider a parent’s absence or relocation due to
                active duty service as a factor in determining custody or permanently
                modifying a child custody order.
                (b) If a court temporarily modifies a custody order due to a parent’s
                active duty service, the order temporarily modifying the custody order
                terminates automatically not later than ten (10) days after the date the
                parent notifies the temporary custodian in writing that the parent has
                returned from active duty service. This subsection does not prevent a
                court from modifying a child custody order as provided under this
                article after a parent returns from active duty service.[2]
       In its May 14, 2014 order, the trial court found that this statute “must be read in

       the context of the relocation statute and that said statute clearly anticipates



       2
         For purposes of this statute, “active duty” means full-time service in the armed forces of the United States
       or the National Guard for a period exceeding thirty consecutive days in a calendar year. Ind. Code § 31-9-2-
       0.8. “Armed forces of the United States” includes the active or reserve components of the Army. I.C. § 5-9-
       4-3(1).

       Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015                Page 7 of 12
       relocation by the parent for active duty such as deployment not merely a change

       of station in the United States.” App. p. 39.


[11]   This finding is consistent with our opinion in In re C.S., 964 N.E.2d 879 (Ind.

       Ct. App. 2012), trans. denied, in which a mother chose to reactivate her active

       duty service to take a job as a career counselor, apparently indefinitely, in

       Kentucky because it provided better pay and benefits than the private sector.

       We agreed with the trial court’s observation in that case that Indiana Code

       Section 31-17-2-21.3:

               does not prohibit modification of custody. Rather, it protects a citizen-
               soldier from losing custody of their child based on their absence from
               their child’s life while they are serving their country. This section is
               meant to serve as a shield. Mother is attempting to use it as a sword.
               Mother is not absent from the child’s life at this time. By her own
               admission, she is available to act as the primary custodial parent for
               the child. She has a safe, stable job. She cannot be deployed. Mother
               is attempting to utilize the statute to exercise a veto power over any
               custody modification, even when the modification is in her child’s best
               interests. Mother’s interpretation would render the statute absurd.
       C.S., 964 N.E.2d at 885 (citation omitted). We concluded:

               A reading of the statute in its entirety supports the trial court’s
               conclusion. Section (a) generally prevents the trial court from making
               a determination of custody or permanent modification of a custody
               order while a parent is on active duty service. Section (b), however,
               contemplates impermanency of such service by referring to the return
               of the parent from active duty service.
       Id. We held that, because the mother testified she would remain in Kentucky

       for “some time to come,” her location would only be changed upon her request,




       Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015   Page 8 of 12
       and she could not be deployed to a combat zone, the mother’s service did not

       demonstrate the impermanency contemplated by the statute. Id.


[12]   Here we do not agree with Sophia that Indiana Code Section 31-17-2-21.3

       prevented the trial court from modifying physical custody to Ryan. First,

       although not addressed by Sophia on appeal, on June 25, 2010, the parties

       agreed to a modification of their previous settlement agreement. The

       modification agreement specifically provided, “In the event that Mother would

       be deployed and/or relocated in preparation of deployment, [D.M.] would live

       with Father primarily until such time as Mother returns.”3 App. p. 29. It is

       clear the parties anticipated that Sophia’s military service might require her to

       relinquish physical custody to Ryan. And, in fact, Sophia voluntarily applied

       for the AGR program under a “blanket application” knowing that she would be

       placed where she was needed. April 14, 2014 Tr. p. 83. Given the terms of the

       modification and Sophia’s voluntary application to the AGR program, we

       cannot conclude that Indiana Code Section 31-17-2-21.3 prohibited the trial

       court from modifying custody.


[13]   Also, we believe the evidence showed that Sophia’s relocation is more

       temporary in nature than in C.S. Here, Sophia has an active duty commitment

       of three years, and after that she might be able to return to Indiana. She also

       indicated she might not renew her role in the AGR program if she does not



       3
        In her brief, Sophia asserts that “a ‘deployment’ is the same as a ‘change of station in the United States.’”
       Appellant’s Br. p. 15.

       Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015                 Page 9 of 12
       have custody of the children. See September 8, 2014 Tr. p. 138. We believe

       Indiana Code Section 31-17-2-21.3(b) provides guidance upon Sophia’s return

       to Indiana.


[14]   Sophia also argues that there is no evidence to support the trial court’s finding

       that she could have restricted her application to central Indiana but chose not to

       do so. Our review of the record confirms that Sophia testified she could not

       choose her location and that she would be ordered to go where she was needed.

       However, Sophia has not shown that the finding is reversible error. It is clear

       that the trial court’s decision to modify custody was based on maintaining the

       children’s stability. In denying Sophia’s relocation request, the trial court

       recognized that the children have a substantial number of family members in

       central Indiana, including Sophia’s family, and that they are well-adjusted to

       their routine at home, school, and community. In modifying custody, the trial

       court again concluded it was in the children’s best interest to remain in Indiana

       after recognizing they have extended family in Indiana and are well-adjusted to

       Ryan’s house, their school, and their community. Thus, the trial court’s

       custody modification was based on its analysis of the children’s best interest

       and not whether Sophia could have chosen her location when she applied to the

       AGR program. Sophia has not established that the trial court’s decision to

       modify physical custody to Ryan following her relocation to North Carolina

       was clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015   Page 10 of 12
                                        II. Appellate Attorney Fees

[15]   Ryan requests appellate attorney fees be awarded to him pursuant to Indiana

       Appellate Rule 66(E), which provides for the assessment of “damages if an

       appeal, petition, or motion, or response, is frivolous or in bad faith. Damages

       shall be in the Court’s discretion and may include attorneys’ fees. . . .” We will

       only assess damages where an appellant, acting in bad faith, maintains a wholly

       frivolous appeal. Bessolo v. Rosario, 966 N.E.2d 725, 734 (Ind. Ct. App. 2012),

       trans. denied. Although Appellate Rule 66(E) permits us to award damages on

       appeal, we must act with extreme restraint in this regard due to the potential

       chilling effect on the exercise of the right to appeal. Id. To prevail on her

       claim, Ryan must show that Sophia’s contentions and arguments on appeal are

       utterly devoid of all plausibility. See id.


[16]   Ryan contends that this is the second appeal taken by Sophia on this issue.

       Sophia did pursue an appeal of the May 2014 order, and we dismissed it

       because the issue was not properly certified for interlocutory appeal and

       accepted as such by this court. See Masters v. Masters, 30A01-1406-DR-238 (Ind.

       Ct. App. Dec. 19, 2014) (citing Ind. App. R. 14(B)(3)). Although this is

       Sophia’s second appeal, it is the first time the issue of her relocation has been

       addressed on the merits. Accordingly, we are not persuaded that this is a basis

       for awarding appellate attorney fees. Ryan also asserts that Sophia’s brief

       contains arguments that are not supported by citation and that her brief requests

       us to take judicial notice of, for example, the impact of September 11, 2001 on

       Hoosier military families. This simply is not a case in which Sophia, acting in

       Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015   Page 11 of 12
       bad faith, maintained a wholly frivolous appeal. Appellate attorney fees are not

       warranted here.


                                                Conclusion
[17]   Based on the terms of the couples’ modification agreement and the fact that

       Sophia’s relocation is not permanent, the trial court did not err in its

       modification of physical custody of the children to Ryan while Sophia is in

       North Carolina. Further, appellate attorney fees are not warranted under these

       circumstances. We affirm.


[18]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A04-1410-DR-488 | May 27, 2015   Page 12 of 12
