      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any
                                                                            Aug 30 2017, 6:33 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                    CLERK
                                                                             Indiana Supreme Court
      estoppel, or the law of the case.                                         Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Monty K. Woolsey                                         Donna Jameson
      Andrew R. Bloch                                          Greenwood, Indiana
      Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      C.Z.,                                                    August 30, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               41A04-1611-DR-2456
              v.                                               Appeal from the Johnson County
                                                               Circuit Court
      J.Z.,                                                    The Honorable K. Mark Lloyd,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               41C01-1404-DR-245



      Altice, Judge.


                                               Case Summary


[1]   C.Z. (Father) appeals the child custody order entered following the dissolution

      of his marriage to J.Z. (Mother). On appeal, Father raises the following issues:

      Court of Appeals of Indiana | Memorandum Decision 41A04-1611-DR-2456 | August 30, 2017         Page 1 of 11
              1. Did the trial court abuse its discretion in awarding primary
              physical custody to Mother?


              2. Did the trial court err in finding that Ind. Code § 31-17-2.2-1
              (the Relocation Statute) did not apply?


      Mother cross appeals, raising the following issue:


              3. Did the trial court abuse its discretion in awarding joint legal
              custody?


[2]   We affirm.


                                       Facts & Procedural History


[3]   Mother and Father were married in 2010, and their daughter, C.Z. (Child), was

      born in 2012. Father is a physician and Mother is a licensed speech and

      language pathologist. During the marriage, the parties lived in Greenwood,

      Indiana. In April 2014, when Child was one and a half years old, Mother filed

      a petition for dissolution of marriage, and Mother and Child moved out of the

      marital residence and into an apartment in Greenwood.


[4]   The trial court entered a preliminary order on June 23, 2014, pursuant to which

      Mother was awarded temporary primary physical custody and Father was

      awarded parenting time. On December 16, 2014, the trial court entered a

      partial decree of dissolution, but noted that issues relating to child custody

      remained open.




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[5]   On June 10, 2015, Mother filed a Notice of Intent to Relocate, in which she

      indicated a desire to move with Child to Columbus, Indiana, which is

      approximately thirty miles away from Mother’s Greenwood apartment.

      Mother had lived in Columbus prior to the marriage and Mother’s twin sister

      and her family continued to reside there. Mother had accepted a promotion to

      the position of Program Director at one of her employer’s campuses in

      Columbus. The position came with a significant pay increase and Mother’s

      work week was increased from thirty to forty hours. Mother and Child

      continued to reside at Mother’s apartment in Greenwood pending the trial

      court’s final custody order, but Mother indicated that her employer would

      require her to move to Columbus if she wished to keep her new position. There

      were no similar positions available to Mother in Greenwood. Father objected

      to Mother’s proposed relocation.


[6]   A final hearing on all pending matters concluded on March 28, 2016. On July

      28, 2016, the trial court entered its supplemental decree of dissolution, in which

      it awarded primary physical custody to Mother and ordered the parties to share

      joint legal custody. In its findings, the trial court noted that it was “not

      convinced” that the Relocation Statute applied to initial custody determinations

      like the one at issue here, but nevertheless found that Mother had a good faith

      reason for relocating and that relocation was in Child’s best interest and would

      have a minimal impact on parenting time. Appellant’s Appendix Vol. 2 at 14.

      Father filed a motion to correct error, which was denied after a hearing. Father

      now appeals. Additional facts will be provided as necessary.


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                                          Discussion & Decision


[7]   Where, as here, a trial court enters special findings and conclusions sua sponte,

      the specific findings and conclusions control only as to the issues they cover,

      while a general judgment standard applies to any issue upon which the trial

      court has not made findings. Tew v. Tew, 924 N.E.2d 1262, 1264 (Ind. Ct. App.

      2010), trans. denied. We review the trial court’s specific findings and

      conclusions using a two-tiered standard of review: first, we consider whether

      the evidence supports the findings, and second, whether the findings support

      the judgment. Id. at 1264-65. We will set aside the trial court’s findings and

      conclusions only if they are clearly erroneous, that is, if the record contains no

      facts or inferences supporting them. Id. at 1265. We will affirm a general

      judgment on any theory supported by the evidence presented. Id. In reviewing

      the findings and judgment, we will neither reweigh the evidence nor judge the

      credibility of witnesses, and we will consider only the evidence most favorable

      to the ruling. Id.


[8]   Furthermore, “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)). As our Supreme Court has explained:

              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

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              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

      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.


                                            1. Physical Custody


[9]   Father argues that the trial court’s decision to award primary physical custody

      to Mother was an abuse of discretion. 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. 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.

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               (4) The interaction and interrelationship of the child with:


                       (A) the child’s parent or parents;


                       (B) the child’s sibling; and


                       (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 . . . .


       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).


[10]   Father concedes that the trial court’s findings are supported by the evidence, but

       argues that the findings do not support the trial court’s decision to award


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       Mother primary physical custody. According to Father, the findings and record

       compel a conclusion that he should have been awarded primary physical

       custody or, “at a minimum,” an award of joint physical custody. Appellant’s

       Brief at 22. Father’s arguments are nothing more than a request to reweigh the

       evidence and substitute our judgment for that of the trial court, which we will

       not do.1


[11]   The trial court noted that Mother believed Father was a “good dad[.]”

       Appellant’s Appendix at 13. The court found further that Father “either does not

       feel the same about [Mother’s] parenting or is unwilling to acknowledge the

       same” and that “[i]n either case, [Father’s] actions during the proceedings make

       his perspective suspect[.]” Id. The court found that Father had “repeatedly

       demonstrated his unwillingness and/or inability to cooperate with decision

       making through co-parenting” and that “[d]uring the provisional period and

       throughout numerous texts and emails with [Mother] regarding parenting time

       with [Child], [Father] remain[ed] argumentative and abrasive.” Id. at 12. The

       trial court further found that although Mother would ask for Father’s

       participation and input regarding the parenting-time schedule, Father would not

       contribute his thoughts or preferences in a meaningful manner. The court also

       noted that Father claimed to be concerned for Child’s safety in Mother’s care,




       1
         Father’s arguments rely in large part on disputed evidence unfavorable to the trial court’s ruling, which we
       will not consider. Father also misstates the record by asserting that Mother relocated during the pendency of
       the custody proceedings. The record clearly establishes that Mother continued to reside at her Greenwood
       apartment pending the trial court’s ruling.

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       but found those concerns to be “largely unsupported by the evidence or grossly

       exaggerated.” Id.


[12]   These findings support a conclusion that if Father had been awarded primary

       physical custody, he would have been unlikely to effectively co-parent with

       Mother and facilitate her relationship with Child. The trial court found that

       Mother, on the other hand, had continued to attempt to work with Father to

       facilitate his parenting time with Child despite his abrasive attitude and lack of

       cooperation. Indeed, the record shows that Mother has exhibited

       commendable flexibility and willingness to accommodate Father’s irregular

       work schedule, and she has allowed him more time with Child than required by

       the Indiana Parenting Time Guidelines. These findings are sufficient to support

       the trial court’s conclusion that awarding primary physical custody to Mother

       was in Child’s best interests.


                                                 2. Relocation


[13]   Father next argues that the trial court erred as a matter of law by concluding

       that the Relocation Statute was inapplicable to this case. Father has

       mischaracterized the trial court’s order. Although the trial court expressed

       doubt as to whether the Relocation Statute applied, it nevertheless found that

       application of the Relocation Statute did not alter its ultimate custody decision.

       Specifically, the trial court found as follows:

               The Court notes that it is not convinced that the Relocation
               Statute . . . applies in these circumstances. As there has, until
               now, been no final custody order, it would appear that the
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               pertinent analysis is under the factors set forth in I.C. 31-17-2-8.
               However, in this instance the conclusion of the analysis under
               both statutes is the same as there is certainly a good faith reason
               for [Mother] to relocate back to Columbus and such a relocation
               is certainly in the child’s best interest, with minimal impact to
               parenting time.


       Appellant’s Appendix Vol. 2 at 14. See I.C. § 31-17-2.2-5 (providing that if a

       relocating parent satisfies his or her burden of proving that the proposed

       relocation is made in good faith and for a legitimate reason, the burden shifts to

       the nonrelocating parent to prove that the proposed relocation is not in the

       child’s best interest); I.C. § 31-17-2.2-1(b) (providing that a court considering a

       relocation petition should consider, among other things, the distance involved,

       the hardship and expense for the nonrelocating parent to exercise parenting

       time, and the feasibility of preserving the relationship between the

       nonrelocating parent and child through suitable parenting time).


[14]   Thus, contrary to Father’s arguments on appeal, the trial court clearly

       considered the Relocation Statute and performed the necessary analysis. The

       trial court was not, as Father seems to suggest, required to make specific

       findings on each of the factors set forth in the Relocation Statute. See H.H. v.

       A.A., 3 N.E.3d 30, 36 (Ind. Ct. App. 2014) (explaining that when considering a

       request to relocate, “while the trial court is to consider all relevant factors, [it] is

       not necessarily required to make specific findings on each factor unless

       requested to do so by the parties”). Father makes no attempt to challenge the

       trial court’s findings that Mother’s proposed relocation was made in good faith


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       and for a legitimate purpose or its finding that the relocation was in Child’s best

       interests, and we conclude that both findings were clearly supported by the

       evidence. The trial court’s ruling on Mother’s petition to relocate was not an

       abuse of discretion.


                                           3. Joint Legal Custody


[15]   On cross-appeal, Mother argues that the trial court abused its discretion in

       awarding joint legal custody. I.C. § 31-17-2-13 provides that a court may award

       joint legal custody if doing so is in the best interest of the child. In determining

       whether an award of joint legal custody would be in the child’s best interest, the

       court must “consider it a matter of primary, but not determinative, importance

       that the persons awarded joint custody have agreed to an award of joint legal

       custody.” I.C. § 31-17-2-15. The court must also consider the following

       factors:

               (1) the fitness and suitability of each of the persons awarded joint
               custody;


               (2) whether the persons awarded joint custody are willing and
               able to communicate and cooperate in advancing the child’s
               welfare;


               (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) whether the child has established a close and beneficial
               relationship with both of the persons awarded joint custody;


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               (5) whether the persons awarded joint custody:


                       (A) live in close proximity to each other; and


                       (B) plan to continue to do so; and


               (6) the nature of the physical and emotional environment in the
               home of each of the persons awarded joint custody.


       Id.


[16]   In this case, the trial court noted that the parties had not agreed to joint legal

       custody, but found that all other factors weighed in favor of an award of joint

       legal custody. On appeal, Mother argues that an award of joint custody was an

       abuse of discretion because the parties have been unable to communicate

       effectively concerning Child’s upbringing. We must reject this invitation to

       reweigh the evidence. Although the record plainly indicates that Mother and

       Father do not get along, they nevertheless managed to communicate effectively

       enough throughout the provisional period when it came to Child. Accordingly,

       we cannot conclude that the trial court’s decision to award joint legal custody

       was an abuse of discretion.


[17]   Judgment affirmed.


[18]   Baker, J. and Bailey, J., concur.




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