ATTORNEY FOR APPELLANT                                       ATTORNEY FOR APPELLEE
G. Jayson Marksberry                                         James A. Smith
Danville, Indiana                                            Carmel, Indiana
______________________________________________________________________________

                                              In the                          FILED
                              Indiana Supreme Court                         Nov 13 2012, 10:01 am

                              _________________________________
                                                                                   CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                      No. 32S04-1206-DR-349                             tax court




D.C.,
                                                             Appellant (Respondent below),

                                                 v.

J.A.C.,
                                                        Appellee (Petitioner below).
                              _________________________________

                Appeal from the Hendricks Superior Court, No. 32D05-0809-DR-114
                          The Honorable Stephanie LeMay-Luken, Judge
                             _________________________________

        On Petition to Transfer from the Indiana Court of Appeals, No. 32A04-1106-DR-296
                              _________________________________

                                        November 13, 2012


David, Justice.

          In this case, a mother sought to relocate out-of-state with her child. The father filed a
motion to modify custody and prevent the child’s relocation. After an evidentiary hearing, which
was conducted over two days with ten witnesses testifying, the trial court ruled in the father’s
favor. The Court of Appeals reversed.

          Today, we reiterate that in family law matters, trial courts are afforded considerable
deference. Here, the trial court’s judgment was well supported by the findings, and neither the
judgment nor the findings were clearly erroneous.
                                  Facts and Procedural History

       D.C. (Mother) and J.A.C. (Father) married in 1997. Their son (Child) was born in 2003.
In 2008, when Mother and Father divorced, they agreed to share legal custody of Child. The
agreement provided Mother with “physical residential custody,” subject to Father’s parenting
time, which consisted of three overnight visits per week and two weekends per month.

       In June 2010, Mother filed a notice of intent to relocate. In July 2010, Mother filed a
motion for temporary order permitting relocation, and, while that motion was pending, she
moved with Child to a location near Nashville, Tennessee. But shortly after, in August 2010, the
trial court denied Mother’s motion for a temporary order permitting relocation, and Mother
complied with a court order for Child’s return to Indiana.

       Around the same time, Father filed a motion to modify custody and prevent Child’s
relocation. The trial court appointed a guardian ad litem (GAL) for Child, and the GAL filed a
report with the court in December 2010. Several months later, the trial court held an evidentiary
hearing on the issues of relocation and modification of custody. The GAL testified, consistent
with his report, that he did not believe that the relocation was in the best interests of Child. The
trial court also heard testimony from Mother, Father, Child’s maternal and paternal
grandmothers, and Child’s godfather, among others.

       The trial court granted Father’s motion to modify custody and prevent Child’s relocation.
Specifically, the order provided that Mother and Father would retain joint legal custody, Father
would become the primary physical custodian, and Mother would be granted parenting time
during school breaks and on any other occasions she may be visiting central Indiana.

       Mother appealed, and the Court of Appeals reversed the trial court. D.C. v. J.A.C., 966
N.E.2d 158 (Ind. Ct. App. 2012). The Court of Appeals also declined to award appellate
attorney’s fees to Father on Father’s request. Id. at 164.

       We granted transfer. We summarily affirm the decision of the Court of Appeals that
Father is not entitled to appellate attorney’s fees under these circumstances. Ind. Appellate Rule
58(A)(2).



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                                       Standard of Review

       Here, the trial court made specific findings of fact and conclusions of law in its order
modifying custody and preventing Child’s relocation. Accordingly, we “‘shall not set aside the
findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity
of the trial court to judge the credibility of the witnesses.’” Best v. Best, 941 N.E.2d 499, 502
(Ind. 2011) (quoting Ind. Trial Rule 52(A)).

       “‘Findings are clearly erroneous only when the record contains no facts to support them
either directly or by inference.’” Id. (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.
1997)). An appellate court neither reweighs the evidence nor reassesses witness credibility, and
it views evidence most favorably to the judgment. Id.

                                            Relocation

       When a parent files a notice of intent to relocate, the nonrelocating parent may object by
moving to modify custody or to prevent the child’s relocation. Ind. Code § 31-17-2.2-1(b); 31-
17-2.2-5(a). When this objection is made, “[t]he relocating individual has the burden of proof
that the proposed relocation is made in good faith and for a legitimate reason.” I.C. § 31-17-2.2-
5(c). If the relocating parent shows good faith and a legitimate reason, “the burden shifts to the
nonrelocating parent to show that the proposed relocation is not in the best interest of the child.”
Id. § 31-17-2.2-5(d).

       A court must weigh the following factors in considering a proposed relocation, as set
forth in Indiana Code section 31-17-2.2-1(b):

       (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.


                                                 3
        (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.

        “Other factors affecting the best interest of the child” include, among other things, the
child’s age and sex; the parents’ wishes; the child’s wishes, with the wishes of children fourteen
years or older being given more weight; the child’s relationship with parents, siblings, and any
other person affecting the child’s best interests; and the child’s adjustment to home, school, and
the community. I.C. § 31-17-2-8; see also Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind.
2008).1 When one parent is relocating, it is not necessary for a court to find a substantial change
in one of these “other factors” before modifying custody. See Baxendale, 878 N.E.2d at 1257.

        In this case, the trial court found that Mother met the initial burden of showing legitimate
reason and good faith in relocating.2         The trial court then turned to the issue of whether
relocation of Child was in Child’s best interest. It ultimately found that relocation would not be
in Child’s best interests, citing the following reasons: the distance involved in the move was
significant; Father was very involved in Child’s daily activities and education; both maternal and
paternal grandparents, along with other extended family, were involved in Child’s daily life in
Indiana; and relocation would cause “significant deterioration” in Child’s relationships with




1
  As the Court of Appeals correctly pointed out, this Court “has instructed that by implication, the factors
set forth for custody determinations and modifications require consideration when determining what other
factors may affect the best interest of the child.” D.C., 966 N.E.2d at 162 (citing Baxendale, 878 N.E.2d
at 1257).
2
  The trial court’s finding on whether Mother’s proposed relocation was made in good faith and for
legitimate reason was as follows:
        Though Mother has repeatedly set forth in pleadings and through her testimony that her
        stated reason for relocation to Tennessee is new and better employment; the Court finds
        that her relationship with Jeffrey Jackson is the primary reason for her relocation.
        Mother moved into Mr. Jackson’s home in Tennessee upon her relocation. Mother’s
        relationship with Mr. Jackson and her current employment with a more regular work
        schedule, shorter shifts and a significantly higher salary of $84,400 are legitimate reason
        and purpose. Mother’s relocation was made in good faith.


                                                     4
Father and Child’s extended family.3



3
  The trial court’s detailed findings on whether relocation was in the best interest of Child were as
follows:
       13. The distance involved in Mother’s move is a significant drive to exchange [Child] for
       parenting time. The move is approximately 300 miles. If the non-custodial parent would be able
       to conduct parenting time on a 3 day weekend, [Child] would be in a vehicle for 20 hours of a 72
       hour weekend.
       14. Currently, gas prices hover around $4.00 a gallon. Father has already purchased a vehicle
       with better gas mileage in order to accommodate the increased driving for parenting time
       exchanges.
       15. Father is a very involved Father through daily activities, cub scouts, sports and [Child’s]
       education. Father would not be able to continue any of these activities if [Child] is relocated to
       Tennessee. Both maternal and paternal grandparents (and other extended family) are involved in
       [Child’s] daily life in Brownsburg, Indiana. Grandparents attend school events and sports events
       (games) to watch [Child]. This would cease if [Child] is relocated to Tennessee. Instead of
       [Child] being part of and involved with an extended family, [Child] would be part of Mother’s
       and Mr. Jackson’s daily life only. The Court has no doubt that the grandparents would visit with
       [Child] in Tennessee, it simply would be less significant.
       16. Neither party has attempted to thwart the other’s contact with the child. Prior to the
       relocation issue the parties worked well together to provide parenting time for each other and to
       handle [Child’s] care when Mother was working extended shifts. While the parties’
       communication with each other is not perfect, it never put the child at risk. Neither party speaks
       negatively about the other. Mother did, however, enroll [Child] in elementary school in
       Tennessee without notice or discussion with Father. Mother did promptly return [Child] to Father
       upon order of this Court. This action obviously caused confusion for [Child] and was not
       necessary.
       17. The reason provided by Mother for relocating is employment. Mother was well-employed in
       Indiana at St. Vincent’s Hospital with a salary of $52,000. As previously set forth Mother’s
       salary has been significantly increased by her new employment. However, the primary reason for
       Mother’s relocation is her relationship with Mr. Jackson. Father’s stated reasons for opposing the
       relocation and for modification of physical custody are that [Child] has established relationships
       with the family (in Indiana) that include extended family that all provide nurturing, support and
       stability for [Child]. Further [Child’s] relocation to Tennessee would prevent regular, frequent
       and meaningful contact with Father and other family members. The Court finds that last stated
       reason to be most significant. To allow relocation of the minor child would cause a significant
       deterioration of the relationship between Father and [Child]. [Child’s] relationship with his
       extended family would also deteriorate. However, Father has established himself as a very
       involved Father through all of [Child’s] life: home, church, school activities /events, cub scouts
       and sports. Extended family events and contact are the norm. If Father needs child care,
       extended family provides this for him. If [Child] is relocated to Tennessee, Father would not be
       able to attend school events, cub scouts or sports practices and games with [Child]. Father’s
       involvement to this level was occurring prior to Mother’s Notices of Intent to Relocate.
       18. Mother and Joyce Lowry describe the school system in Hendersonville as “year round.” This
       is simply incorrect. Fall break in October appears to be extended in the Hendersonville school
       calendar due to the earlier start date. In addition, there are three-day weekends or single days off


                                                    5
        The Court of Appeals found that the trial court’s best-interest determination was clearly
erroneous. D.C., 966 N.E.2d at 160, 164. In doing so, the Court of Appeals focused on several
of the trial court’s findings.

        The Court of Appeals first noted Mother’s new management-level employment position
in Tennessee and her significant salary increase. Id. at 163. The Court of Appeals found that the
trial court gave only “cursory acknowledgment to the benefit that Mother’s new employment
would provide.” Id. It also suggested that the trial court undervalued the benefit of Mother’s
new job by finding that Mother’s primary motivation in moving was to be with her boyfriend.
Id.

        The Court of Appeals also noted the burden of travel, stressing the trial court’s finding
that Father had already purchased a more fuel-efficient vehicle. Id. The Court of Appeals added
that the time that Child would spend in transit during any three-day weekend visit is a neutral
factor because it would be incurred regardless of which parent was visiting Child. Id.

        The Court of Appeals then acknowledged the trial court’s finding that relocation would
cause the deterioration of Child’s relationship with Father and Child’s extended family. But the
Court of Appeals commented,

        While we recognize that Father would not have as much contact with B.C. as he
        had previously enjoyed before the relocation, “if a relocation that deprives one
        parent of daily or weekly time with a child could never be in the child’s best
        interests, then the statute would never allow for a long-distance move when the
        nonrelocating parent has exercised parenting time, as it plainly does in the proper
        circumstances.”

Id. (quoting T.L. v. J.L., 950 N.E.2d 779, 789 (Ind. Ct. App. 2011)).

        Father argues that the Court of Appeals failed to afford the trial court the high amount of
deference appropriate in cases involving family law. Father specifically argues that the Court of
Appeals focused on Mother’s “better paying job” instead of giving meaningful consideration to


        in the Hendersonville school calendar. Three-day weekends or single days do not assist with
        increasing parenting time for Father if [Child] is relocated.
        19. The Court finds that it would not be in the best interests of [Child] to be relocated to
        Tennessee.


                                                 6
the “numerous” other factors that the trial court found in favor of preventing relocation and
modifying custody.

       This Court has expressed the importance of appellate deference in family law matters:

       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 access 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, 941 N.E.2d at 502. On the other hand, appellate courts “are in a poor position to look at a
cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed
their demeanor, and scrutinized their testimony as it came from the witness stand, did not
properly understand the significance of the evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.
2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)).

       The standard of review is not de novo. As stated above, under these circumstances,
appellate courts employ a clear-error standard. Consequently, “[o]n appeal it is not enough that
the evidence might support some other conclusion, but it must positively require the conclusion
contended for by appellant before there is a basis for reversal.” Id. (alteration in original)
(quoting Brickley, 247 Ind. at 204, 210 N.E.2d at 852). This Court “will not substitute [its] own
judgment if any evidence or legitimate inferences support the trial court’s judgment. The
concern for finality in custody matters reinforces this doctrine.” Baxendale, 878 N.E.2d at 1257–
58.

       Here, the trial court conducted the evidentiary hearing over two days. It heard the
testimony of ten witnesses, including the GAL, who testified that he believed relocation was not
in the best interest of Child. The trial court also heard testimony that Child had attended
preschool, kindergarten, first grade, and after school care in Hendricks County; Child was
actively involved in many activities, including sports; Child’s best friend currently lives close to
Child; Child’s close relationships with his godparents, older step-brother, and grandparents
would deteriorate if Child were relocated; and Child has progressed in his religious faith in his
community.



                                                 7
           Contrary to the Court of Appeals’s assertion, the trial court here did not base its
conclusion that relocation was not in the best interest of Child solely on the fact that Father
would not have as much contact with Child. We agree with the Court of Appeals that there is no
blanket rule that a relocation that deprives a parent of time with a child is always against the best
interest of the child. But a trial court can, and in fact must, take into account the child’s
relationship with parents, which is a best-interest factor listed in Indiana Code section 31-17-2-
8(4)(A). Here, the trial court considered Father and Child’s relationship, among a host of other
factors.

       Accordingly, we cannot conclude, consistent with the applicable clear-error standard of
review, that there are no facts to support the trial court’s judgment either directly or by inference.
In fact, the trial court had ample support for its decision. As this Court has stated,

           [W]here a very young child or baby is involved, a move out of state may have
           little or no effect on the child. For an older child who has formed friendships,
           attends school, and participates in activities or sports, is involved in church, or
           enjoys the security of supportive relationships with nearby relatives or others in
           his community, a move out of state may have a much more significant effect.

Baxendale, 878 N.E.2d at 1257 (alteration in original) (quoting Lamb v. Wenning, 600 N.E.2d
96, 99 (Ind. 1992)). Ultimately, although an appellate court in this case may be able to reach a
different conclusion from that of the trial court, doing so would involve reweighing the evidence,
which is not permitted.

                                              Conclusion

           Trial courts are afforded a great deal of deference in family law matters, including
relocation and custody disputes. The trial court, in this case, made sufficient and supportable
findings to sustain its decision to prevent relocation and modify custody. Applying the highly
deferential standard of review, we affirm the trial court.

Dickson, C.J., and Rucker, Massa, and Rush, JJ., concur.




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