Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                           FILED
before any court except for the purpose                   Feb 28 2012, 9:08 am
of establishing the defense of res
judicata, collateral estoppel, or the law                        CLERK
                                                               of the supreme court,
of the case.                                                   court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

KELLEY Y. BALDWIN                               ROBERT D. WICKENS
Yeager Good & Baldwin                           Wickens & Wickens, LLC
Shelbyville, Indiana                            Greensburg, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MIRANDA HERBERT,                                )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )    No. 16A01-1109-DR-418
                                                )
STEVEN HERBERT,                                 )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE DECATUR SUPERIOR COURT
                         The Honorable Matthew D. Bailey, Judge
                             Cause No. 16D01-1001-DR-13



                                     February 28, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Miranda Herbert (“Mother”) appeals the trial court‟s grant of the request to

prevent the relocation of her children filed by Steven Herbert (“Father”). Mother raises

one issue which we revise and restate as whether the court abused its discretion in

granting Father‟s request to prevent the relocation of the children. We affirm.

       The relevant facts follow. During their marriage, Mother and Father had four

children born in 1999, 2002, 2004, and 2006. The marriage was dissolved on August 13,

2010, and the settlement agreement provided that Mother have primary legal and physical

custody of the children. Mother lived in the former marital residence with the children in

Greensburg, Indiana. At some point, Mother became engaged to Justin Burt who lives in

Columbus, Indiana. On May 16, 2011, Mother filed a Verified Notice of Intent to

Relocate which indicated that she was moving to Columbus. Mother indicated that she

was moving because she was “engaged to Justin Burt with plans to be married within the

very near future,” that the current home of Mother and the children was the former

marital residence which had been listed for sale for several months and they would be

required to vacate the residence upon its sale, that the relocation will allow Mother to

remain a “stay-at-home mother,” and that the relocation “will minimize the opportunities

Father has available to him to harass Mother . . . .” Appellant‟s Appendix at 27.

       On June 3, 2011, Father filed a Verified Motion to Prevent Relocation, to Modify

Custody, and to Order a Custody Evaluation. Father objected to Mother relocating with

the children pursuant to Ind. Code § 31-17-2.2-5. On June 6, 2011, the court ordered a

custody evaluation. At some point, Mother and the children relocated to the western side

of Columbus, Indiana, and lived with Burt.

                                             2
       On August 3, 2011, Mother filed a Motion for Continuance and Notice to Court

which indicated that Mother would be proceeding with the relocation. On August 9,

2011, Father filed a Response to Notice, Motion for Restraining Order, and Request for

Emergency Hearing.

       On August 26, 2011, the court held a hearing on the relocation issue. After the

hearing, the court denied Mother‟s petition to relocate, and the court‟s order stated:

       The Petitioner, Miranda Herbert (hereinafter referred to as “Mother”), filed
       Petitioner‟s Verified Notice of Intent to Relocate Pursuant to I.C. § 31-17-
       2.2 on May 16, 2011. The Respondent, Steven Herbert (hereinafter referred
       to as “Father”), filed his Verified Motion to Prevent Relocation, to Modify
       Custody, and to Order a Custody Evaluation on June 3, 2011. On August
       26, 2011 the Court heard evidence and the argument of counsel with regard
       only to the issue of Mother‟s relocation. The parties agreed that the
       remaining, pending issues will be heard at a later date. The Court now
       FINDS as follows:

       1.     Mother and Father have four minor children. Mother has primary
              legal and physical custody of the children, and Father has parenting
              time pursuant to the parenting time guidelines with minor
              alterations.

       2.     Pursuant to Indiana Code § 31-17-2.2-1, on May 16, 2011 Mother
              filed notice of her intention to relocate with the children to
              Columbus, Indiana.

       3.     On June 3, 2011, Father filed his Verified Motion to Prevent
              Relocation, to Modify Custody, and to Order a Custody Evaluation.
              In his motion, Father objected to Mother‟s relocation and requested
              that the relocation be prevented.

       4.     Father‟s request is for an order preventing relocation of the children,
              and Indiana Code § 31-17-2.2-5 is the controlling statutory
              provision.

                                         *****

       7.     Prior to the hearing of this matter, Mother relocated with the
              children to Columbus, Indiana. Prior to the relocation, Mother and
                                           3
                the children had resided in Greensburg, Indiana. Father resides in
                the Greensburg area.

       8.       Mother‟s boyfriend owns the home in Columbus to which Mother
                has relocated. Mother‟s boyfriend‟s place of employment is closer
                to Greensburg than it is to Columbus. Mother‟s boyfriend resides in
                Columbus so that he can be the caregiver for his minor child when
                that child‟s mother works in Columbus.

       9.       Mother‟s reason for relocating to Columbus is to allow her to live
                with her boyfriend.

       10.      Mother has failed to prove that the relocation is for a legitimate
                reason.

       11.      Father‟s request to prevent the relocation of the children should be
                granted.

       IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED:

       A.       The parties‟ minor children are to be returned to Decatur County
                within thirty (30) days of the date of this order.

       B.       The parties‟ minor children shall not be relocated out of Decatur
                County without the prior authorization of the Court.

       C.       All remaining, pending issues are set for hearing on the 14th day of
                Oct. 2011 at 8:30 A.M.

Id. at 11-13.

       The issue is whether the court abused its discretion in granting Father‟s request to

prevent the relocation of the children. Under Chapter 2.2, there are two ways to object to

a proposed relocation under the relocation chapter: a motion to modify a custody order,

Ind. Code § 31-17-2.2-1(b), and a motion to prevent relocation of the child, Ind. Code §

31-17-2.2-5(a). Baxendale v. Raich, 878 N.E.2d 1252, 1256 n.5 (Ind. 2008). While

Father filed a Verified Motion to Prevent Relocation, to Modify Custody, and to Order a

Custody Evaluation, the hearing and the court‟s order addressed only the issue of
                                       4
Mother‟s relocation. Accordingly, we review Ind. Code § 31-17-2.2-5.1 Under Ind.

Code § 31-17-2.2-5(c), Mother was required to prove that “the proposed relocation is

made in good faith and for a legitimate reason.” “If this burden is met, the nonrelocating

individual must prove that „the proposed relocation is not in the best interest of the

child.‟”2 Baxendale, 878 N.E.2d at 1256 n.5 (quoting Ind. Code § 31-17-2.2-5(d)).

When a relocation is made in good faith, the analysis ultimately turns on the best interests

of the child. Id.



        1
          We observe that Ind. Appellate Rule 14(A) provides that parties are permitted to appeal “as a
matter of right” an order “[g]ranting or refusing to grant, dissolving, or refusing to dissolve a preliminary
injunction.”
        2
            Ind. Code § 31-17-2.2-1(b) provides:

        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, 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.
                                                       5
       The Indiana Supreme Court has expressed a preference for granting latitude and

deference to our trial judges in family law matters. In re Marriage of Richardson, 622

N.E.2d 178, 178 (Ind. 1993). The Indiana Supreme Court recently stated that we afford

such deference because of trial judges‟ “unique, direct interactions with the parties face-

to-face.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “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.” Id.; see

also Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). “[O]ur review of the best interests

determination requires us to view the evidence in a light most favorable to the trial

court‟s decision and defer to the trial court‟s weighing of the evidence.” T.L. v. J.L., 950

N.E.2d 779, 788-789 (Ind. Ct. App. 2011), reh‟g denied.

       Mother argues that “[t]he evidence before the trial court positively required the

trial court to conclude that Mother‟s decision to relocate was made in good faith and for a

legitimate reason.” Appellant‟s Brief at 14. Mother also argues that Father has failed to

show that her relocation is not in the best interests of the children. Mother argues that the

sale of the parties‟ former marital residence where she and the children were residing was

imminent and that “[u]pon the sale of the former marital residence, Mother would be

required to find full-time employment if she had to find other housing, but would be

allowed to remain as a stay-at-home mother if she and the children moved into [Burt‟s]

home.” Id. at 15. Mother argues that her and “the children‟s need for housing and the

benefits to the children from Mother remaining a stay-at-home mother, alone, supported

                                             6
no other conclusion the trial court could have reached other than the conclusion that

Mother‟s decision to relocate was made in good faith and for a legitimate reason.” Id.

       Father argues that the court did not abuse its discretion by finding that Mother did

not meet her burden to prove that the relocation of the children was for a legitimate

reason. Father argues that the court “reasonably concluded that the convenience of the

Mother‟s boyfriend was not a legitimate reason to relocate [the] children.” Appellee‟s

Brief at 7. Father argues that “Mother‟s desire not to work should not require that the

children be moved away from their hometown, their school, their family, and their

friends.” Id. at 8. Father also argues that relocation is not in the best interests of the

children.

       During the hearing, Mother testified that Father was “very insistent on reducing

the price of that home so that it sells expeditiously.” Transcript at 12. Mother also

testified that Burt‟s neighborhood is extremely child friendly, that the children have

bonded with Burt, that Father‟s drive would increase by “five, ten minutes at the most,”

that the larger class sizes at the public school in Columbus offer more opportunities for

the children to make friends, and that the children are enrolled to attend religious

education classes. Id. at 21.

       With respect to the Mother‟s move to Columbus, Father testified:

       Our house, that [Mother] and I currently own, is closer and is shorter to
       [Burt‟s] place of employment than his current residence is in Columbus.
       Um, the reason why they chose Columbus was to make it more convenient
       for [Burt] to have his, his newborn daughter, at the time, and he picks her
       up from the babysitter in Franklin on his way back from work everyday.
       He keeps her a few hours then takes her to her mother, that works at
       Columbus Hospital, where she works second shift. The mother then takes
       her to her place in Franklin, where she has physical custody and she never
                                            7
        plans on intending to leave Franklin or moving to Columbus. This is the
        only reason why my kids had to move to Columbus. [Burt] gets to keep
        things nice and easy for him and my kids are asked to sacrifice everything
        they know here in Greensburg.

Id. at 7.

        Father testified that when the children lived in Greensburg he would pick them up

from school at 2:45 and return them to Mother at 8:00 p.m. Father testified that “[e]ach

time I get [the children], will mean they are spending an hour or to an hour and a half in

the car, if they were living at [Burt‟s] current residence.” Id. Father testified that if the

children lived in Greensburg then “they could ride the bus or be picked up and returned at

a decent time and not be, have to be put through the, the ordeal of riding in the car for

that long of time, twice a week.” Id. Father indicated that he and the children would

“have more quality time and less non productive time driving” if the children lived in

Greensburg. Id.

        With respect to the change in the children‟s education, Father testified: “As far as

school goes, they are going from class sizes of fourteen (14) or less at Saint Mary‟s to

class sizes of thirty (30) or more at Columbus. Saint Mary‟s kids get more attention, do

better academically and grow up with Christian based values.” Id. at 8. Father testified

that “Saint Mary‟s has proven that the kids that have attended there do better than the

public school kids.” Id. Father also testified that “the oldest three (3) kids have a, have a

good core or group of friends.” Id.

        According to Father, the children “have no family” in Columbus and “[a]lmost

their entire family has grown up [in Decatur County] and still remain [there].” Id. at 9.

Father testified that “[t]he convenience of having everyone here means a lot” and the
                                            8
children “have easy access to all the people that love them the most.” Id. Father

indicated that he would have no problem with Mother staying in the marital residence

with the children.

       While we acknowledge that Mother presented evidence that would support the

opposite outcome, we will not reweigh conflicting evidence and, based upon Father‟s

testimony, cannot say that the trial court abused its discretion in concluding that Mother

failed to prove that the relocation is for a legitimate reason or that the court abused its

discretion in granting Father‟s request to prevent the relocation of the children. See

Swadner v. Swadner, 897 N.E.2d 966, 977 (Ind. Ct. App. 2008) (acknowledging that the

evidence presented by the mother would support the conclusion that relocation was in the

children‟s best interests, but holding that the father‟s evidence supported the court‟s

determination that relocation was not in the children‟s best interests, and concluding that

the court had not abused its discretion in denying mother‟s petition to relocate).

       For the foregoing reasons, we affirm the court‟s order granting Father‟s request to

prevent the relocation of the children.

       Affirmed.

MAY, J., and CRONE, J., concur.




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