                                                                  Aug 21 2015, 8:54 am




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Deborah M. Agard                                          Jaimie L. Cairns
Law Office of Deborah M. Agard                            Cairns & Rabiola, LLP
Indianapolis, Indiana                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Amanda Dillon,                                            August 21, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          55A04-1407-DR-344
        v.                                                Appeal from the Morgan Superior
                                                          Court

Matthew Dillon,                                           The Honorable Christopher L.
                                                          Burnham, Judge
Appellee-Respondent
                                                          Cause No. 55D02-1303-DR-431




Baker, Judge.




Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015                Page 1 of 12
[1]   Amanda Dillon (Mother) appeals the judgment of the trial court granting

      custody of their daughter to Matthew Dillon (Father). Finding no error, we

      affirm.


                                                      Facts
[2]   Mother and Father were married in 2010. They have one daughter, Maci

      (Daughter), whom they raised in their home in Camby. On March 7, 2013,

      Mother filed for divorce. Both parties sought custody of Daughter. The trial

      court held a preliminary hearing on April 16, 2013. Father, who had moved to

      Arizona before Mother filed for divorce, was not in attendance. Following the

      hearing, the trial court granted Mother temporary custody of Daughter pending

      a final custody determination. The trial court ordered Father to pay weekly

      child support while Daughter was in Mother’s custody.


[3]   On September 6, 2013, the trial court held a final dissolution hearing. By this

      point, Father had settled in California, where he now lives with his new wife.

      Following the dissolution hearing, on September 13, 2013, the trial court

      entered a decree dissolving the marriage, but reserved the issue of custody for

      future determination. The trial court found:

              Several factors have been considered by the Court in making a
              determination of what is in the best interest of [Daughter] regarding
              the most appropriate parent to assume the duties of legal and primary
              custodian of the child. More questions are left unanswered than were
              resolved at the final hearing in this case. Given the child’s age [five],
              the geographical separation of the parents ([Father] residing in
              California, and [Mother] residing in Camby, Indiana) and given the
              unanswered questions regarding the behavioral health of the parents

      Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015           Page 2 of 12
              and fitness to assume appropriate long-term parenting responsibilities,
              it is the Court’s position that each parent shall be given a “test period”
              to demonstrate their fitness and ability to be the primary custodian of
              the child in the future.

      Appellant’s App. p. 13.


[4]   Pursuant to this order, Daughter spent several months residing in Indiana with

      Mother and several months residing in California with Father. On June 6,

      2014, the trial court held a final hearing to determine custody. Following the

      hearing, the trial court permitted Mother and Father to file post-hearing

      memoranda in support of their positions. On June 25, 2014, after considering

      the evidence presented at hearing, as well as the post-hearing memoranda, the

      trial court issued its judgment granting Father primary physical custody of

      Daughter. Mother now appeals.


                                    Discussion and Decision
[5]   We are mindful of the fact that, “in custody disputes, ‘the trial court is often

      called upon to make Solomon-like decisions in complex and sensitive matters.’”

      Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App. 2002) (quoting Speaker

      v. Speaker, 759 N.E.2d 1174, 1179 (Ind. Ct. App. 2001)). We grant substantial

      deference to a trial court’s decision on such matters as it “is in a position to see

      the parties, observe their conduct and demeanor, and hear their testimony.” Id.

      For this reason, we will not reweigh the evidence or judge the credibility of the

      witnesses. Id. We will not disturb the trial court’s judgment absent an abuse of

      discretion. Truelove v. Truelove, 855 N.E.2d 311, 314 (Ind. Ct. App. 2006). An


      Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015        Page 3 of 12
      abuse of discretion occurs when the trial court’s decision is clearly against the

      logic and effects of the facts and circumstances before it. Id.


[6]   Initially, Mother makes two arguments regarding alleged failures to comply

      with Indiana Code chapter 31-17-2.2, which governs relocation in child custody

      cases. Mother first argues that Father failed to comply with section 31-17-2.2-

      1(a), which provides that “[a] relocating individual must file a notice of intent

      to move with the clerk of the court.”1


[7]   The relocation chapter defines “relocating individual” as “an individual who

      has or is seeking: (1) custody of a child; or (2) parenting time with child; and

      intends to move the individual’s principal residence.” Ind. Code § 31-9-2-107.5.

      Here, Mother fails to argue that Father meets this definition. In this case,

      Father moved before Mother filed for divorce. It is clear that Father did not

      have custody at the time he moved, and he could not have been “seeking

      custody” at the time he moved since he moved before this cause came into

      being.


[8]   However, regardless of whether Father should be considered a “relocating

      individual” for purposes of the relocation chapter, it is clear that notice of his

      relocation pursuant to section 31-17-2.2-1 would have been superfluous in this

      case. This is because the notice requirement is meant to alert the trial court that



      1
        We note that Mother did not raise this issue before the trial court and has, therefore, waived it on appeal.
      In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007).



      Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015                           Page 4 of 12
      a parent has relocated so that it may modify an existing child custody order if

      necessary. See Farag v. DeLawter, 743 N.E.2d 366, 368 (Ind. Ct. App. 2001)

      (discussing the predecessor notice of relocation statute, I.C. § 31-17-2-23

      (1998)). This is apparent from the plain language of the next subsection, which

      provides that if an individual seeks to relocate, “[u]pon motion of a party, the

      court shall set the matter for a hearing to review and modify, if appropriate, a

      custody order . . . .” I.C. § 31-17-2.2-1(b) (emphasis added).2 As Father’s

      move, which occurred before proceedings in this case began, did not require the

      trial court to consider modification of an existing custody order, the relocation

      chapter was not implicated.


[9]   Mother’s next argument fails for the same reason. She argues that the trial

      court erred in failing to comply with a section of the relocation statute providing

      that when the court grants a “temporary order permitting the relocation of the

      child pending a final hearing” it may not then base its final custody order solely

      on a consideration of the period during which the child was relocated. I.C. §

      31-17-2.2-6. Mother argues that, in making its final custody determination, the

      trial court focused almost exclusively on Father’s time with Daughter in

      California.




      2
       Additionally, the statute makes clear throughout that it is only concerned with relocation of a parent to the
      extent that this entails relocation of the child. See, e.g. I.C. §§ 31-17-2.2-5 (nonrelocating individual may file
      “motion to prevent relocation of child”); 31-17-2.2-6 (allowing trial court to issue order “restraining or
      permitting relocation of child”) (emphases added). Here, as Father had not been granted primary physical
      custody of Daughter at the time that he moved to California, he could not, and did not, relocate the child.



      Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015                             Page 5 of 12
[10]   Here, Mother must be arguing that the trial court’s September 13, 2013,

       dissolution order, which provided that Mother and Father were to have joint

       custody until a final custody determination was made, was a “temporary order

       permitting relocation of the child” subject to Indiana Code section 31-17-2.2-6.

       However, this is not an accurate characterization of that order. The

       preliminary joint custody order was an exceptionally prudent move on the part

       of the trial court, providing each parent with a custodial “test period,” from

       which both the parents and the trial court could learn before taking a final

       position on who should have primary physical custody of Daughter. As such, it

       necessarily preceded the initial custody order in this case. Once again, like the

       rest of the relocation chapter, section 31-17-2.2-6 clearly applies to situations

       where a parent seeks to relocate a child after an initial custody order has been

       entered. As Daughter’s location was not fixed until the trial court entered its

       initial custody order on June 25, 2014, the preliminary joint custody order

       cannot be viewed as an order permitting her relocation.


[11]   However, even were we to find that this preliminary joint custody order could

       be construed as the type of order to which section 31-17-2.2-6 applies, the trial

       court did not, in fact, fail to comply with this section. As will be seen, the trial

       court considered many important factors other than the time Daughter spent

       with Father in California. Mother’s final argument now turns our attention to

       the trial court’s thorough consideration of these factors.


[12]   Mother devotes the majority of her brief to reexamining the factors considered

       by the trial court in making its custody determination. Indiana Code section

       Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015   Page 6 of 12
       31-17-2-8 provides that, before making an initial child custody determination,

       the trial court “shall consider all relevant factors,” including: the age and sex of

       the child; the child’s interaction with parents and siblings; and the child’s

       adjustment to her home, school, and community. The trial court “may” also

       consider factors enumerated in the relocation chapter, which include: the

       distance involved in the proposed change of residence; the hardship and

       expense involved for the nonrelocating individual to exercise parenting time;

       and the reasons provided by the relocating individual for seeking relocation.

       I.C. § 31-17-2.2-2.


[13]   Initially, we note that neither party requested that the trial court make specific

       findings of fact and conclusions thereon. Appellant’s Br. p. 5. “In the absence

       of special findings, we review a trial court decision as a general judgment and,

       without reweighing evidence or considering witness credibility, affirm if

       sustainable upon any theory consistent with the evidence.” Baxendale v. Raich,

       878 N.E.2d 1252, 1257 (Ind. 2008). We reiterate that if any evidence supports

       the judgment, we will not substitute our own judgment for that of the trial

       court. Id. at 1258.3


[14]   A review of Mother’s argument makes clear that she is asking us to reweigh the

       evidence. Relying heavily on the factors contained in the relocation chapter,



       3
         Mother attempts to compare her case to two recent decisions of this Court affirming trial court judgments
       that relocation was not in the child’s best interests. H.H. v. A.A., 3 N.E.3d 30 (Ind. Ct. App. 2014); Myers v.
       Myers, 13 N.E.3d 478 (Ind. Ct. App. 2014). Mother must be mindful of the fact that here, in asking us to
       reverse the trial court’s judgment, she carries a much heavier burden.



       Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015                           Page 7 of 12
       Mother argues that “Father failed to establish legitimacy in his move to

       California beyond the wonderful woman he met.” Appellant’s Br. p. 14. First,

       we note that the trial court was not “required” to consider the factors

       enumerated in the relocation chapter. Section 31-17-2.2-2 of that chapter

       specifically provides that “[i]f 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.” (emphasis added). Here,

       the trial court had notice of Father’s relocation prior to entering an initial

       custody order. Therefore, this provision applies.


[15]   Second, even if the trial court was required to consider this factor (which is, in

       any event, merely one factor among many) it had evidence before it to support

       the conclusion that Father had moved for “legitimate” purposes. The trial

       court found that:

               [Father] lives in a four bedroom home in Riverside, California; the
               home is owned by his current spouse, Luz Dillon. [Father] grew up
               through the time of his high school graduation in Arizona, when he
               relocated to the Midwest. After [Mother] and [Father’s] separation,
               [Father] moved back to Arizona to reside with his mother [] then later
               relocated to Riverside, California for employment opportunities and
               upon remarriage after the divorce in this case was finalized in
               September 2013.

       Appellant’s Br. p. 24. Father testified at the hearing: “I moved to Arizona and

       then I met my fiancé[e] and then I was able to find good job opportunities out

       there with trucking. And [I] also wanted to move on with my relationship with

       my now fiancé[e].” Tr. p. 71-72. Thus, assuming that the trial court’s finding


       Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015    Page 8 of 12
       that Father moved to California “for employment opportunities and upon

       remarriage” was as essential as Mother believes it to be, it is nevertheless

       supported by the evidence. Appellant’s Br. p. 24.


[16]   Mother next focuses on Daughter’s adjustment to home, school, and

       community. The trial court took Daughter’s home life in Indiana into account,

       noting:

               [Mother] lives in . . . the former marital residence that [Daughter] grew
               up in until the divorce . . . . [Mother’s] life has stabilized and
               improved since the divorce was finalized, and she presently has stable,
               gainful, employment . . . . [Mother] [] and [Daughter] have extended
               family on [Mother’s] side in the local area, and the extended family
               interacts regularly.

       Id. However, the trial court also had evidence before it that Father had

       extended family in California and Arizona. Tr. p. 35-36. Thus, the evidence

       showed that Daughter’s cross-country move would make it harder for her to see

       some members of her family while making it easier for her to see other

       members of her family. We find no error in the trial court’s careful weighing of

       these competing interests.


[17]   As for school, Mother takes issue with Father’s decision to enroll Daughter in

       kindergarten at the Reach Academy, a charter school in California. Id. at 18.

       Mother contends that, had Daughter stayed in Indiana, Mother would have

       enrolled her at North Madison Elementary, which Mother contends is a

       superior school. The trial court noted that “North Madison Elementary school

       has an excellent record of education of its students in Indiana.” Id. at 24.

       Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015      Page 9 of 12
       However, the trial court heard testimony from Daughter’s kindergarten teacher

       in California that Daughter was doing exceptionally well in her class, that she

       was on course to begin first grade next year, and that Father was consistently

       involved in Daughter’s education since enrolling her at the Reach Academy.

       Tr. p. 9-10.


[18]   This evidence supports the trial court’s finding that Father has “taken an active

       role in [Daughter’s] education, care, and development.” Appellant’s Br. p. 24.

       The trial court also found that Father was “the primary caregiver of [Daughter]

       when [Father] and [Mother] lived together” and that, since moving to

       California, “[Father] has seen to it that [Daughter’s] development has been

       enhanced by involvement with normal childhood activities beyond school,

       including dance classes and involvement in Sunday school at the family’s

       church.” Id. Mother does not contest these findings and we cannot ignore

       them simply because Mother speculates that Daughter may do better in a

       different school.


[19]   Mother also points to the fact that she will have to travel to California to visit

       Daughter, and that this will require her to take off work and incur travel costs.

       The trial court addressed this issue fully:

               Regardless of which parent is responsible as [Daughter’s] primary
               physical custodian, the other parent will be incurring substantial costs
               in travel expenses for extended parenting time, holiday parenting time,
               and periodic parenting time with [Daughter] in her State during the
               school year. [Mother] and [Father’s] respective incomes . . . are nearly
               equal. [Daughter] will need to be escorted by a parent during her
               plane travel to and from the other parent’s home, thus incurring more

       Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015     Page 10 of 12
               expense for plane travel, hotel lodging and car rentals by the escorting
               parent. [Father’s] suggestion that the non-custodial parent be given an
               “allowance” for travel expenses to be incurred as a set-off against
               payment of weekly child support is appropriate and reasonable under
               the circumstances.

       Appellant’s Br. p. 25. With this in mind, the trial court entered a “zero support

       order,” explaining that “[Mother] shall not be required to pay weekly child

       support to [Father] for the reason that [Mother] will be incurring significant

       travel expenses in exercising extended parenting time with [Daughter] . . . .” Id.

       at 26. Thus, although Mother is correct that she will incur expenses as a result

       of the trial court’s decision, the trial court clearly dealt with this problem in a

       just and reasonable manner.


[20]   We decline to entertain any more of Mother’s requests to reweigh the evidence.

       The trial court’s findings are supported by substantial evidence in the record,

       and, even were Mother able to show that one of the trial court’s findings lacked

       sufficient support, no one factor is determinative when it comes to child

       custody. Such judgments “typically turn on essentially factual determinations

       and will be set aside if only when they are clearly erroneous.” Baxendale, 878

       N.E.2d at 1257. That is certainly not the case here. The trial court’s conclusion

       that Daughter’s interests would be best served by Father being granted primary

       physical custody is certainly supported by substantial evidence. In the end, the

       trial court noted that it had reason to believe that, despite the distance, this

       family relationship showed promise going forward:

               [Mother] and [Father’s] communication and co-parenting skills have
               improved since the divorce was finalized, barring some minor hiccups
       Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015     Page 11 of 12
               along the way. [Mother] and [Father] have done their best to keep
               open the lines of communication between [Daughter] and the non-
               custodial parent when [Daughter] was in the primary physical custody,
               again—barring some minor hiccups along the way. [Mother] and
               [Father] should be able to co-parent [Daughter] going forward, so long
               as they continue to keep open the lines of communication between
               them, and close family members, and so long as they continue to be
               respectful of each other’s role as a parent of [Daughter]. [Daughter’s]
               best interests come first, always.

       Appellant’s Br. p. 25.


[21]   To be sure, the trial court has made a difficult decision in this case. However,

       its order displays a breadth and depth that has not only assisted our review, but

       assured us that we would be foolish not to defer to its judgment. Simply put, it

       is clear that the trial court has thought this one through.


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


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 55A04-1407-DR-344 | August 21, 2015    Page 12 of 12
