MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                    FILED
regarded as precedent or cited before any                      Jan 23 2017, 9:15 am

court except for the purpose of establishing                        CLERK
                                                                Indiana Supreme Court
the defense of res judicata, collateral                            Court of Appeals
                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   APPELLEE PRO SE
Erik H. Carter                                           Steven C. Vetor
Carter Legal Services LLC                                Indianapolis, Indiana
Noblesville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of Stephenie                         January 23, 2017
Buck                                                     Court of Appeals Case No.
                                                         48A02-1607-JP-1592
Elizabeth (Buck) Tyler
                                                         Appeal from the Madison Circuit
Appellant-Respondent,                                    Court
        v.                                               The Honorable G. George Pancol,
                                                         Judge
Steven Vetor,                                            The Honorable Kevin M. Eads,
                                                         Magistrate
Appellee-Petitioner
                                                         Trial Court Cause No.
                                                         48C02-1109-JP-257



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 1 of 16
                                              Case Summary
[1]   Elizabeth (Buck) Tyler (“Mother”) and Steven Vetor (“Father”) are the

      biological parents of six-year-old Stephenie. 1 Father established paternity in

      2011, and although Mother was originally granted primary physical custody of

      Stephenie, custody was modified and granted to Father in 2014. Thereafter, in

      March 2016, Mother filed an emergency petition for modification of custody,

      parenting time, and child support based upon Father’s relocation from

      Anderson to Indianapolis. Mother claimed that Father failed to give her proper

      statutory notice of his intent to relocate and that modification of custody was

      warranted. Following a hearing, the trial court concluded that Father failed to

      give Mother proper statutory notice of his intent to relocate and ordered Father

      to pay Mother’s attorney $600 in attorney’s fees. However, the court found that

      custody modification was not warranted and therefore denied Mother’s petition

      to modify. On appeal, Mother makes numerous claims that the trial court

      abused its discretion and/or committed reversible error. Finding no abuse of

      discretion or reversible error, we affirm.


                                  Facts and Procedural History
[2]   Stephenie was born out of wedlock on April 30, 2010, to Mother and Father.

      On December 8, 2011, the trial court issued its order establishing paternity, and

      ordered that the parties would share joint legal custody of Stephenie, with



      1
       On December 8, 2014, the trial court granted Father’s petition for name change and Stephenie’s last name
      was changed from Buck to Vetor. For simplicity, we will refer to her only as Stephenie.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017         Page 2 of 16
      Mother having primary physical custody. In June 2012, Mother relocated with

      Stephenie from Indiana to the state of Washington. Mother failed to provide

      advance notice of her relocation to Father, failed to provide him with her

      correct address, and failed to make arrangements for Father to have parenting

      time. Father objected to the relocation and filed a petition to modify custody.

      Following a contested hearing that finally occurred in January 2014, the trial

      court issued its order finding Mother in contempt and modifying primary

      physical custody of Stephenie to Father.


[3]   Mother eventually moved back to Indiana, and on February 29, 2016, the trial

      court received a pro se request from Mother requesting a hearing based upon

      what she believed was Father’s intent to relocate from Anderson to

      Indianapolis. The trial court referred the matter to a court facilitator to try to

      informally resolve the matter. The trial court ordered the parties to appear for a

      meeting with the facilitator on March 24, 2016, and indicated that “[f]ailure to

      appear or participate in the meeting may result in dismissal of the action.”

      Appellant’s App. at 29. Father was served with notice of the meeting, but

      Mother’s notice was returned as not served. On March 22, 2016, Mother filed

      an emergency petition for modification of custody, parenting time, and child

      support. The facilitator meeting commenced on March 24, 2016. Mother

      failed to appear at the meeting. A hearing on Mother’s petition to modify

      custody was scheduled for May 10, 2016. The order to appear issued to Father

      regarding the hearing indicates that it was served at an address listed as

      “Vacant.” Id. at 11; Tr. at 4.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 3 of 16
[4]   The modification hearing was held as scheduled on May 10, 2016. Mother

      appeared with counsel. Father failed to appear. After reviewing the court

      record, the trial court determined that Father did not have actual notice of the

      hearing. The trial court permitted Mother to present evidence but determined

      that the matter should be continued and reconvened on a subsequent date when

      Father would be present. Mother did not object. Accordingly, the modification

      hearing was continued and reconvened on June 7, 2016. Mother again

      appeared with counsel, and Father appeared pro se at the hearing. Mother’s

      counsel moved to incorporate the evidence presented at the prior hearing into

      the current hearing, and the trial court granted that motion.


[5]   Regarding statutory notice, Father admitted that he failed to file statutory

      notice of his intent to relocate as required by Indiana Code Section 31-17-2.2-1,

      but stated that he sent Mother a text message informing her of his intent to

      move several weeks before he actually moved. Mother admitted that she was

      aware of Father’s intent to move but stated that Father never gave her his new

      address. Father acknowledged that Mother objected to the relocation by filing a

      petition to modify custody and that he believed the issue would be resolved

      during the March 24, 2016, court-ordered mediation. However, Mother failed

      to attend the mediation. 2 Father stated that he spoke with the court facilitator

      about the move and that the facilitator advised him that “as long as it was I




      2
          Mother maintains that she did not have notice of the mediation.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 4 of 16
      moved for a job that a Judge wouldn’t object and uh pretty much I could go on

      since [Mother] didn’t show up [for mediation].” Tr. at 38.


[6]   Specifically regarding the relocation, Father testified that he took a job with the

      Marion County Jail that required him to live in Indianapolis. 3 He stated that

      he and his current wife moved from Anderson to a house in Indianapolis but

      that he continued to drive Stephenie to her current school in Daleville so as not

      to disrupt the school year. Father stated that Stephenie would attend a Wayne

      Township Elementary school the following school year. Father stated that

      Stephenie had struggled in kindergarten and would repeat kindergarten at the

      new school. Father testified that he believed that going to a new school would

      be in Stephenie’s best interests so that she would not become discouraged by

      having to watch her current classmates “move up.” Id. at 47. Father further

      stated that Stephenie felt positive about the move and going to a new school

      because “she didn’t really like Daleville to begin with [because] bullying

      started.” Id.


[7]   Mother testified that she currently lives in Anderson with her new husband in a

      “possibly rent to own” house. Id. at 63. Mother stated that if custody was

      modified to grant her physical custody of Stephenie, Stephenie would attend a

      different elementary school than she is currently attending but that she would

      attend with one of her sisters. Mother also testified that Stephenie’s



      3
       Although the record indicates that Father changed jobs in May 2016, his job with the Marion County Jail
      apparently precipitated the original move to Indianapolis.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017        Page 5 of 16
      Grandmother lives down the street from Mother. Mother’s testimony indicated

      that Father’s relocation did not interfere with her relationship with Stephenie or

      impose any significant hardship upon the exercise of her parenting time with

      Stephenie.


[8]   At the conclusion of the hearing, the trial court denied Mother’s petition to

      modify custody. Specifically, the trial court’s order stated:


              The Court finds that, although Father did give Mother some
              advance advisement of his intent to relocate to the Indianapolis
              area he did not adequately comply with the relocation notice
              requirement under Indiana law. On two prior occasions, Father
              had provided appropriate notice of his intent to relocate,
              although he had the assistance of Counsel at that time. As such,
              Father is aware of those requirements. Mother’s concern was
              appropriate and she had visited upon her the expense of hiring
              Counsel to pursue her interests in regard to Father’s failure to
              provide appropriate notice. As such, Father is ordered to pay
              Mother’s attorney $600 as attorney fees payable at not less than
              $100.00 per month beginning July 15, 2016.

              The Court does not find that there has been a substantial and
              continuing change in circumstances sufficient to warrant a
              modification of custody. As such, the January 8, 2014 [order,]
              which awarded joint legal custody of the parties with primary
              physical custody to Father remains in effect. Mother shall
              continue to have such parenting time as the parties may agree,
              but in the event of disagreement, not less than the Indiana
              Parenting Time Guidelines.

              In addition to Father being admonished to comply with the
              notice of relocation requirements under Indiana Code in the
              future, both parties are admonished that they need to improve


      Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 6 of 16
               their communication with each other for their daughter’s best
               interest.


       Appellant’s App. at 13. This appeal ensued. We will provide additional facts

       in our discussion as necessary.


                                      Discussion and Decision
[9]    We begin by noting that neither party requested that the trial court make

       specific findings of fact and conclusions thereon. “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.


[10]   Moreover, we review the trial court’s decision regarding the modification of

       child custody only for an abuse of discretion. In re Marriage of Richardson, 622

       N.E.2d 178, 178 (Ind. 1993). Our preference for granting latitude and

       deference to our family-law trial judges is reinforced by the concern for finality

       in custody matters. Baxendale, 878 N.E.2d at 1258. Additionally, we accord

       this deference because trial courts directly interact with the parties and are in a

       superior position “to assess credibility and character through both factual

       testimony and intuitive discernment.” Best v. Best, 941 N.E.2d 499, 502 (Ind.

       2011). Conversely, appellate courts “are in a poor position to look at a cold


       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 7 of 16
       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).


         Section 1 – The trial court did not abuse its discretion or
       commit reversible error in failing to enforce certain provisions
                         of the Relocation Statute.
[11]   This case stems from Mother’s petition to modify custody in response to

       Father’s proposed, and then actual, relocation from Anderson to Indianapolis.

       Mother first argues that the trial court “committed reversible error by failing to

       enforce the provisions of [the Relocation Statute] Indiana Code Section 31-17-

       2.2-1.” 4 Appellant’s Br. at 21. Specifically, Mother complains that Father

       moved to Indianapolis prior to the initial May 10, 2016, hearing on her petition

       to modify custody and argues that the trial court abused its discretion in failing

       to enter at the conclusion of that hearing a temporary order restraining or




       4
         Mother’s first assertion is actually that the trial court committed reversible error “by failing to find that
       Father had notice of [the] first hearing” on her petition to modify. Appellant’s Br. at 18. While her argument
       is difficult to discern, Mother appears to challenge the trial court’s decision to continue and reconvene the
       modification proceedings due to Father’s failure (based upon his alleged lack of notice) to appear at the first
       hearing. However, the trial court announced its decision to continue and reconvene the proceedings at the
       conclusion of the first hearing, and Mother did not object. Accordingly, she has waived our review of this
       issue. See Bogner v. Bogner, 29 N.E.3d 733, 740 (Ind. 2015) (noting that objections to the procedure used by
       the trial court not contemporaneously raised are waived on appeal).

       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017            Page 8 of 16
       permitting the relocation (or ordering return of the child) pursuant to Indiana

       Code Section 31-17-2.2-6. 5 We disagree.


[12]   It is well settled that there are two ways for a nonrelocating parent to object to a

       proposed relocation: a motion to modify a custody order under Indiana Code




       5
           That section, entitled “Orders restraining or permitting relocation of child,” provides:

                (a) If a nonrelocating parent files a motion under section 5 of this chapter, the court, after notice
                and an opportunity to be heard or after compliance with Trial Rule 65(B), may grant a
                temporary order restraining the relocation of a child or order the child to be returned to the
                nonrelocating parent if the court finds:

                (1) that the notice required under IC 31-14-13-10 or this chapter was not served in a timely
                manner and the parties have not presented an agreement concerning the parenting time
                schedule;

                (2) that the child has been relocated without:

                (A) the appropriate notice;

                (B) an agreement between the parties; or

                (C) a court order; or

                (3) from an examination of the evidence presented at the temporary hearing, that there is a
                likelihood that, after a final hearing, the court will not approve the relocation of the child.

                (b) The court may grant a temporary order permitting the relocation of the child pending a final
                hearing if the court:

                (1) determines that the notice required under IC 31-14-13-10 or this chapter was provided in a
                timely manner;

                (2) issues an order for a revised schedule for temporary parenting time with the child; and

                (3) reviews the evidence presented at the temporary hearing and determines that there is a
                likelihood that, after the final hearing, the court will approve the relocation of the child.

                (c) If the court issues a temporary order authorizing the relocating individual to move, in its
                final judgment, the court must consider factors:

                (1) other than; or

                (2) in addition to;

                the temporary relocation of the child when issuing a final order.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017                     Page 9 of 16
       Section 31-17-2.2-1(b), or a motion to prevent the relocation of a child under

       Indiana Code Section 31-17-2.2-5(a). Baxendale, 878 N.E.2d at 1256 n.5. Here,

       Mother chose the former method to object to Father’s proposed relocation. The

       record does not suggest that Mother ever specifically sought an order preventing

       relocation pursuant to Indiana Code Section 31-17-2.2-5, and such would have

       been a prerequisite to the trial court’s consideration of and discretionary

       decision to grant a temporary order permitting or restraining relocation. See

       Ind. Code § 31-17-2.2-6. We cannot say that the trial court abused its discretion

       or committed reversible error in failing to independently enter a discretionary

       order or to grant relief that was never sought by Mother.


          Section 2 – The trial court properly considered the required
           statutory factors in denying Mother’s petition to modify.
[13]   Mother next asserts that the trial court failed to properly address and consider

       the required statutory factors in denying her petition to modify. When a party

       moves to modify custody in response to the proposed relocation of the other

       parent, the trial court must take certain factors into consideration. Jarrell v.

       Jarrell, 5 N.E.3d 1186, 1190 (Ind. Ct. App. 2014), trans. denied. Specifically, in

       considering a proposed relocation, the trial court must “take into account” the

       following factors:

               (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.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 10 of 16
        (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.


Ind. Code § 31-17-2.2-1(b). The “[o]ther factors affecting the best interest of the

child” include the statutory factors relevant to an initial custody order or a

modification of that order, such as the child’s age and sex; the parents’ wishes;

the child’s wishes; the child’s interaction and interrelationship with parents,

siblings, and other persons affecting the child’s best interest; and the child’s

adjustment to home, school, and the community. Ind. Code § 31-14-13-2. 6




6
  Indiana Code Section 31-14-13-2 provides the “best interests” factors for an initial custody determination
following the establishment of paternity. While most of our case law references the almost identical language
that appears in the general Family Law Article dealing with initial custody orders, Indiana Code Section 31-
17-2-8, the parties appear to agree that the paternity provision applies here.

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017         Page 11 of 16
       Prior to granting or denying a relocation-based petition to modify custody, the

       trial court is required to consider all the enumerated relocation factors listed in

       Indiana Code Section 31-17-2.2-1(b) In re Marriage of Harpenau, 17 N.E.3d 342,

       347 (Ind. Ct. App. 2014).


[14]   Mother’s primary contention is that the trial court failed to consider the

       relocation factors in making its ruling. We acknowledge that the trial court did

       not specifically reference each of the enumerated relocation factors in its order

       denying Mother’s request for modification. However, with respect to the trial

       court’s general judgment, we presume that the trial court correctly followed the

       law, and this presumption is one of the strongest presumptions applicable to our

       consideration of a case on appeal. See In Re H.M.C., 876 N.E.2d 805, 807 (Ind.

       Ct. App. 2007), trans. denied (2008). While the Relocation Statute does not

       require findings of fact, we observe that at a minimum there must be evidence

       in the record on each of the factors listed in Indiana Code Section 31-17-2.2-

       1(b). Our review of the record here indicates that the trial court did in fact

       properly consider evidence presented by the parties that was relevant to each of

       the relocation factors. There is ample evidence in the record regarding: (1) the

       minimal distance involved in Father’s change of residence; (2) the minimal

       hardship and expense involved for Mother to exercise parenting time; (3) the

       feasibility of preserving the relationship between Mother and Stephenie; (4) that

       there is not an established pattern of conduct by Father to thwart Mother’s

       contact with Stephenie; (5) that Father sought relocation due to his employment

       and that Mother opposed relocation due to concerns regarding education and


       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 12 of 16
       proximity to family; and (6) other factors affecting the best interest of Stephenie

       including her young age; her interaction and interrelationship with parents,

       siblings, and other persons affecting her best interest; and her adjustment to

       home, school, and the community. While we understand that Mother may

       disagree with the trial court’s assessment of the weight of the evidence

       regarding each factor, her argument that the trial court failed to consider the

       relocation factors is without merit. 7


[15]   Mother maintains that even assuming that the trial court considered the

       relocation factors, it failed to also consider the original best interest factors

       pursuant to Indiana Code Section 31-14-13-2. Appellant’s Br. at 27. Our

       supreme court has specifically addressed the statutory interplay between the

       relocation factors and the original best interest factors and cautioned that the

       Relocation Statute incorporates all of the original best interest factors, and adds

       some new ones. Baxendale, 878 N.E.2d at 1257. In other words, “the

       circumstances surrounding a relocation can create substantial changes for the

       child, including changes in the [original best interest factors] and also those

       provided by the relocation chapter.” Id. at 1258.


[16]   In denying Mother’s petition to modify custody, the record indicates that the

       trial court considered both the relocation factors and the incorporated original

       best interest factors and specifically concluded that Mother did not meet her



       7
         We note that Mother does not specifically address or challenge the weight of the evidence presented
       regarding each of the relocation factors, so neither do we.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017         Page 13 of 16
       burden to establish “that there has been a substantial and continuing change in

       circumstances sufficient to warrant a modification of custody” and that

       modification of custody was not in Stephenie’s best interests. Appellant’s App.

       at 13. On appeal, Mother simply points to evidence in the record that she

       contends demonstrates a substantial change in some of the original best interest

       factors. This is simply an invitation for us to reweigh the evidence and judge

       the credibility of witnesses, which we cannot do. Baxendale, 878 N.E.2d at

       1257. The evidence supporting the trial court’s judgment indicates that

       Stephenie is well adjusted and well cared for by Father, and that Mother enjoys

       ample parenting time. There is no evidence that Father’s relocation to

       Indianapolis has changed or will change any of these things. We remind

       Mother of the deference we give to our trial judges in family law matters and

       that in order to obtain a reversal of the denial of custody modification, it is not

       enough to show that the evidence might have supported modification; rather,

       the evidence must “positively require” modification. Kirk, 770 N.E.2d at 307.

       Mother has not met this high standard. We cannot say that the trial court

       abused its discretion in denying Mother’s petition to modify custody.


            Section 3 – The trial court did not abuse its discretion in
               failing to find Father in direct contempt of court.
[17]   As a final matter, Mother argues that the trial court abused its discretion in

       failing to punish Father by finding him in direct contempt of court for allegedly

       “repeatedly lying” to the court and “interfering with the business of the court.”

       Appellant’s Br. at 30. Mother’s argument in this regard is misguided.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 14 of 16
[18]   “Contempt of court generally involves disobedience of a court or court order

       that ‘undermines the court’s authority, justice, and dignity.’” Reynolds v.

       Reynolds, 64 N.E.3d 829, 832 (Ind. 2016) (citations omitted). Direct criminal

       contempt involves actions occurring near the court that interfere with the

       business of the court, and of which the judge has personal knowledge. Troyer v.

       Troyer, 867 N.E.2d 216, 220 (Ind. Ct. App. 2007). Any act which manifests as

       a disrespect and defiance of a court may constitute direct criminal contempt.

       Id. It is soundly within the trial court’s discretion to determine whether a party

       is in contempt, as the trial court has the inherent power to maintain its dignity,

       secure obedience to its process and rules, rebuke interference with the conduct

       of business, and punish unseemly behavior. Reynolds, 65 N.E.2d at 832. The

       trial court’s power of direct contempt is essential for the court to be able to

       protect itself against gross violations of decency and decorum as it pursues its

       justice. Hopping v. State, 637 N.E.2d 1294, 1296 (Ind. 1994) (citation and

       quotation marks omitted), cert. denied.


[19]   The trial court’s inherent power to punish a party with a finding of direct

       contempt is just that: the trial court’s power. If the trial court here felt that its

       authority, justice, and dignity had been undermined by Father, it had the

       discretion to act accordingly. It was by no means required to do so. Mother

       has shown no abuse of discretion. The judgment of the trial court is affirmed in

       all respects.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 15 of 16
[20]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-JP-1592| January 23, 2017   Page 16 of 16
