FOR PUBLICATION

ATTORNEY FOR APPELLANT:                    ATTORNEY FOR APPELLEE:


WALTER R. HAGEDORN II                      JAMES G. TYLER
Law Office of Walter R. Hagedorn II        Tyler Law Office
Tell City, Indiana                         Tell City, Indiana
                                                                Sep 12 2014, 8:52 am


                             IN THE
                   COURT OF APPEALS OF INDIANA

IN RE THE MARRIAGE OF                      )
TINA M. HARPENAU,                          )
                                           )
      Appellant-Petitioner,                )
                                           )
             and                           )    No. 62A01-1401-DR-37
                                           )
ROBIN P. HARPENAU,                         )
                                           )
      Appellee-Respondent.                 )


                   APPEAL FROM THE PERRY CIRCUIT COURT
                        The Honorable Lucy Goffinet, Judge
                      The Honorable Karen Werner, Magistrate
                          Cause No. 62C01-1301-DR-44


                                September 12, 2014

                         OPINION - FOR PUBLICATION

ROBB, Judge
                                 Case Summary and Issues

       When Tina (“Mother”) and Robin (“Father”) Harpenau were divorced in August

2013, the parties agreed to joint legal custody of the parties’ two minor children with

Mother to have primary physical custody subject to Father’s parenting time. In October

2013, Mother filed a notice of intent to relocate to Scott County; Father filed a petition to

modify custody objecting to the move. The trial court found Mother’s proposed relocation

was made in good faith and for a legitimate reason but that it was not in the best interests

of the children. Accordingly, the trial court granted Father’s petition to modify, awarding

primary physical custody to Father, granting Mother the same parenting time as Father

originally had, and ordering Mother to pay child support. Mother appeals, raising two

issues for our review: 1) whether the trial court abused its discretion in granting Father’s

petition to modify; and 2) whether the trial court abused its discretion in modifying child

support. Concluding the trial court did not abuse its discretion in modifying custody due

to Mother’s proposed move or in modifying child support accordingly, we affirm.

                                Facts and Procedural History

       Mother and Father were married in 2005 and have two children, V., born in 2007,

and I., born in 2009. The parties’ marriage was dissolved on August 29, 2013, and personal

and property issues were settled by a Dissolution of Marriage Settlement Agreement.

Relevant to the issues on appeal, the agreement provides:

       4. CUSTODY OF CHILD AND PROVISIONS FOR SUPPORT. . . .
              a. [Mother] and [Father] shall have joint legal custody of [the
       children], with [Mother] being primary physical custodian, subject to
       [Father’s] parenting time. The parenting time schedule with the children
       shall be as follows: . . . [Father’s] parenting time during the children’s school

                                              2
       year shall be each week beginning on Friday at 5:00 o’clock P.M. and ending
       on Sunday at noon. During the children’s summer break, [Mother] and
       [Father] shall switch the parenting time schedule wherein [Mother’s] weekly
       parenting time will be the same as [Father’s] was during the school
       year . . . .
       ***
               c. [Mother] intends on relocating her residence to a location in Floyd
       County, Indiana. [Father] intends on relocating to another residence in Perry
       County. [Mother] and [Father] both waive any objection to and consent to
       the first location of each party mentioned herein without filing a Notice of
       Intent as required by Indiana law. The waiver and consent to the first
       relocation shall not be construed as a waiver to any subsequent relocation
       made by the parties and the parties acknowledge that they shall be required
       to follow Indiana law prior to relocating their residence any time after the
       first relocation.
               d. [Father] shall not be required to pay weekly child support to
       [Mother] at this time, which is a deviation from the Indiana Child Support
       Guidelines. [Mother] and [Father] shall each pay one-half of all expenses of
       the children for extracurricular activities, school fees, books, and lunches and
       clothes. The payment of these expenses shall be intended to be child
       support. . . . [Mother] and [Father] each believe it is in the best interests of
       the children to handle the support of the children in this method at the present
       time.

Appellant’s Appendix at 17-18.

       On October 4, 2013, Mother filed a notice of intent to move to a residence in Scott

County, Indiana. In her notice, she stated that she “is moving to establish a new residence

and cohabit with Mr. Eric J. Payne, who owns the residence to which [she] and children

will be moving. The residence is within a closer proximity to [Mother’s] place of work

than her current residence.” Id. at 24. In response, Father filed a petition to modify,

objecting to the move and requesting the custody arrangement be modified to grant him

primary physical custody of the children with Mother to have appropriate parenting time.

       At the hearing on Father’s motion, Father testified extensively about his research

into the various school districts in and around his home in Perry County, Floyd County,

                                              3
and Mother’s proposed home in Scott County. He had consented in the decree to Mother’s

move to Floyd County because he believed the schools were good and the driving distances

between their homes, work, and schools were reasonable. He objected to her move to Scott

County because he believed the schools were inferior to the schools in both Perry and Floyd

Counties; his drive time to the children and to their schools would increase; and he had

concerns about the level of criminal activity in and around the proposed home and schools

in Scott County. There was evidence of numerous family members on both Mother’s and

Father’s side who reside in Perry County, whereas there are no family members in Scott

County.1 At the conclusion of the hearing, the trial court announced that it was granting

Father’s petition to modify and later issued an order formalizing its decision:

              1. Pursuant to I.C. § 31-17-2.2-5(c), [Mother] has proved that her
       proposed relocation to Scott County, Indiana is made in good faith and for a
       legitimate reason.
              2. Pursuant to I.C. § 31-17-2.2-5(d), [Father] has met his burden by
       showing that the proposed relocation is not in the best interests of the children
       of the parties.
              3. This lack of best interest for the children is proved by the fact that
       [Mother] is proposing to relocate to Scott County, Indiana which is one hour
       and twenty minutes by motor vehicle from [Father’s] present residence
       meaning that [Father] would have to travel one hour and twenty minutes one
       way in order to exercise parenting time with the children.
              4. That there has been no evidence shown of the significance and the
       duration of the relationship that [Mother] has with her boyfriend, Eric Payne,
       with whom she is to live with in Scott County, Indiana.
              5. There are no family members of either [Father] or [Mother] present
       in Scott County, Indiana. There are significant numbers of relatives of both
       [Father] and [Mother] in Perry County, Indiana.
              6. When [Mother] moves to Scott County, Indiana and lives with her
       boyfriend, Eric Payne, she will have no legal interest in the house of Eric
       Payne so that if she and Eric Payne break up, [Mother] and the children will


       1
           Mother had not yet moved at the time of the hearing, as her relocation had not been approved by the court.

                                                         4
        then be out of living accommodations and [Mother] and the children will
        then have to find another place to live.
                7. That the proposed move would result in circumstances so
        substantial and continuing in nature that it is not in the best interests of the
        children for their custody to be moved with [Mother] to Scott County,
        Indiana.
                8. Thus, [Father’s] Petition to Modify Custody should be granted and
        that joint custody will continue between [Father] and [Mother] with [Father]
        to be the primary custodial parent of the two minor children of the parties
        and [Mother] being the secondary custodial parent . . . . Pursuant to the
        testimony given, [Mother] will have the same parenting time schedule that
        [Father] has had since the entry of the Decree of Dissolution of
        Marriage. . . .

Id. at 6-8.

        In addition, at Father’s request during the hearing, the trial court took judicial notice

of the child support worksheet that was attached to the decree of dissolution. Father

testified that the income figures reflected therein had not changed since that time. See

Transcript at 21. At the conclusion of the hearing, after granting the modification of

custody, the trial court requested a proposed child support worksheet for purposes of

modifying the support order to reflect the change of custody. As neither party had prepared

one nor did either party offer to do so, the trial court figured child support using the figures

from the previous child support worksheet and ordered:

               10. [Mother] shall pay to the Clerk of the Perry Circuit Court the sum
        of $119.00 per week for child support for the minor children of the
        parties . . . . The present provision that each party pay one-half of all
        expenses for the children for extracurricular activities, school fees, books,
        lunches and clothes is hereby eliminated. A copy of the child support
        obligation worksheet is attached hereto . . . .

Id. at 9.




                                                5
         Mother now appeals the trial court’s modification of custody and child support

order.

                                  Discussion and Decision

                                 I. Modification of Custody

                                  A. Standard of Review

         “We review custody modifications for abuse of discretion with a preference for

granting latitude and deference to our trial judges in family law matters.” Wilson v. Myers,

997 N.E.2d 338, 340 (Ind. 2013) (quotation omitted). In reviewing the trial court’s

determination, we neither reweigh evidence nor judge the credibility of witnesses. Joe v.

Lebow, 670 N.E.2d 9, 23 (Ind. Ct. App. 1996). We will not substitute our judgment if any

evidence or legitimate inferences support the trial court’s judgment. Kirk v. Kirk, 770

N.E.2d 304, 307 (Ind. 2002).

                             B. Modification Due to Relocation

         When a parent files a notice of intent to relocate, the nonrelocating parent may

object by filing a motion to modify custody or to prevent the child’s relocation. Ind. Code

§§ 31-17-2.2-1(b); 31-17-2.2-5(a). The relocating parent then has the burden of proving

that the proposed relocation is made in good faith and for a legitimate reason. Ind. Code §

31-17-2.2-5(c). If the relocating parent meets that burden, the burden then shifts to the

nonrelocating parent to show that the proposed relocation is not in the best interest of the

child. Ind. Code § 31-17-2.2-5(d). In considering a proposed relocation, the trial court

must weigh the following statutory factors:

         (1) The distance involved in the proposed change of residence.

                                              6
         (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.

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 modification thereof,

such as the child’s age and sex; the parents’ wishes; the child’s wishes; the child’s

relationship with parents, siblings, and other persons affecting the child’s best interests;

and the child’s adjustment to home, school, and the community. Ind. Code § 31-17-2-8;

see also Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). However, when a parent

is relocating, the trial court does not need to find a substantial change in one of those “other

factors” before modifying custody. Baxendale, 878 N.E.2d at 1257.

         Assuming without deciding that Mother met her burden of proving her proposed

move was being made for a good faith and legitimate reason,2 we focus on the trial court’s

determination that relocation was not in the children’s best interests. The trial court is



         2
           The trial court’s written order stated no reasons supporting its finding that Mother had proved a good faith
and legitimate reason for her proposed move, but in its ruling from the bench, the trial court stated that Mother “has
proven that the proposed location is made in good faith and for a legitimate reason . . . she is moving there for her
boyfriend . . . it is a little bit closer to her work than she is now . . . .” Tr. at 197. We also note that a move to Scott
County would put her residence within the same time zone as her job. A move to Floyd County as contemplated by
the decree would have the same effect with respect to distance and time zone.

                                                             7
required to consider all the enumerated factors listed in section 31-17-2.2-1(b), and

therefore the parent seeking modification must present evidence on each of those factors.

Wolljung v. Sidell, 891 N.E.2d 1109, 1113 (Ind. Ct. App. 2008). Although the trial court

did not make specific findings about each factor,3 our review of the record shows that there

was sufficient evidence of each relevant factor to support the trial court’s decision.

         Father testified that he lives on a 160 acre property in Perry County that is also home

to his parents and his grandmother. Both he and Mother have many relatives in close

proximity to Father’s home, most within fifteen minutes. The parties’ oldest child had

already started kindergarten in Perry County, but Father testified he had agreed for Mother

to relocate to Floyd County because after researching schools and considering the location

of homes and work, “I felt Floyd County you could throw a dart at it. She could live

anywhere, be within good distance to her work and split the middle between [my home and

her work] and there was [sic] two (2) schools, good school corporations.” Tr. at 32. He

testified that Mother told him she was moving to Scott County instead to be closer to her

work and to get help with the kids from her boyfriend and his family. Father was

unimpressed with the Scott County schools and with the area to which she proposed

moving. Father introduced maps and provided testimony regarding the various locations

at issue showing that both his and Mother’s current drives from home to Perry County

schools were approximately five minutes; that his drive from home to the proposed Scott

County location would be one hour and twenty minutes and from work to the proposed


         3
            In modifying custody, the trial court is not required to issue special findings unless requested by a party.
In re Paternity of J.T., 988 N.E.2d 398, 400 (Ind. Ct. App. 2013).

                                                           8
Scott County location would be approximately one hour and forty-five minutes; and that

Mother’s drive from work to the Scott County location would be approximately thirty-five

minutes. Father conceded Mother’s drive to work would be substantially shorter from the

Scott County location than it was from Perry County. He also testified that “everything

has been worked out between us” with regard to spending time with the children. Tr. at

70. There was evidence that under the current arrangement the children got up very early

in order to be taken to the babysitter and accommodate Mother’s work schedule, but that

they would be able to sleep later in Scott County due to being in the same time zone as

Mother’s job. However, they would also be able to sleep later if they resided in Perry

County. So there was evidence regarding the distance, the possible hardship in exercising

parenting time, the feasibility of preserving relationships in Perry County, that there was

no history of contact between the parties and the children being thwarted, and the reasons

Mother had for moving and Father had for objecting.

         With regard to the “other factors affecting the best interest” of the children, the trial

court specifically noted that Mother proposed to move in with her boyfriend, Eric Payne.4

Mother and Payne met through their employment with the same company. Father had met

Payne a couple of times at Mother’s work functions prior to the separation, and Payne had



         4
            Mother argues that the trial court’s finding that Mother’s move to cohabitate with her boyfriend and be in
closer proximity to work was made in good faith and for a legitimate purpose is in direct conflict with the trial court’s
finding that the cohabitation was not in the best interests of the children. A good faith and legitimate move may
nonetheless not be in the child’s best interests. See, e.g., H.H. v. A.A., 3 N.E.3d 30, 36, 39 (Ind. Ct. App. 2014)
(holding trial court erred in finding mother’s proposed relocation out-of-state to be with new husband was not made
in good faith and for a legitimate reason but that the move was nonetheless not in the child’s best interest). We cannot
say the trial court’s decision that moving to live with her boyfriend in a different county than agreed is both a good
faith and legitimate reason for Mother to move and against the best interests of the children is contradictory or against
the logic and effect of the facts and circumstances in this case.

                                                           9
accompanied Mother when the children were dropped off one time since the separation.

The house Mother proposes to move into is wholly owned by Payne. Mother testified at

some length about the house, but with regard to the relationship stated only that she and

Payne were serious and that his son and the parties’ children got along “really well.” Tr.

at 167. There was no specific testimony regarding the length of their relationship or the

relationship between Payne and the children. There was testimony that Mother had no

relatives in Scott County but that Payne did, and she hoped they would help with the

children. There was no testimony about how the children got along with Payne’s extended

family, however. Because Mother intended for the children to be residing in the same

house with Payne and was apparently relying on him and his family to provide assistance

with the children, the relationships between all these parties are particularly relevant to the

children’s best interests.

       We have previously recognized:

       While we are not able to say that the trial judge could not have found
       otherwise than he did upon the evidence introduced below, this Court as a
       court of review has heretofore held by a long line of decisions that we 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, or that he should have found its
       preponderance or the inferences therefrom to be different from what he did.

Bettencourt v. Ford, 822 N.E.2d 989, 997 (Ind. Ct. App. 2005) (quoting Kirk, 770 N.E.2d

at 307). It is not enough that the evidence might support another conclusion; it must

positively require the conclusion advocated by the appellant in order for us to reverse.

Kirk, 770 N.E.2d at 307. Our courts have long recognized that the welfare of children is


                                              10
promoted by affording them permanent residence.           Wolljung, 891 N.E.2d at 1111

(quotation omitted).

       [C]hildren will normally prosper and mature . . . under a standard of
       consistency better than they will otherwise . . . . In the larger sense, then,
       stability in surroundings, schooling, relationships, authority figures, daily
       routine, economic circumstances, etc. constitute a substantial determinant in
       assessing the statutorily enumerated factors relevant to a determination of the
       best interests of the child.

Kuiper v. Anderson, 634 N.E.2d 556, 558 (Ind. Ct. App. 1994). Here, unlike many cases,

stability and permanence is promoted by the change in custody because the dissolution

itself and the split custody arrangement is so new. In Father’s physical custody, the

children are able to stay in a place with which they are familiar, be close to their extended

family on both sides, and to continue with their current babysitter and in their current

school. The trial court heard the parties’ testimony and examined the evidence, ultimately

finding that a relocation would be contrary to the children’s best interests. Mother

essentially asks us to reweigh the evidence, which we cannot do. Joe, 670 N.E.2d at 23.

The trial court’s decision is supported by the record, and we cannot say it is an abuse of

discretion.

                                     II. Child Support

       Mother also contends the trial court erred in calculating child support based upon

the unsigned and unverified child support worksheet incorporated by reference into the

parties’ settlement agreement which was approved in August 2013. The modification of

child support orders is governed by Indiana Code section 31-16-8-1, which provides a child

support order may be modified “upon a showing of changed circumstances so substantial


                                             11
and continuing as to make the terms unreasonable . . . .” Ind. Code § 31-16-8-1(a), (b)(1).

In reviewing a trial court’s modification of child support, we reverse only for an abuse of

discretion. Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 505 (Ind. Ct. App. 2011). An abuse

of discretion occurs when the decision is against the logic and effect of the facts and

circumstances before the court, including any reasonable inferences. Id.

       Mother did not object when Father requested the trial court take judicial notice of

the child support worksheet that was attached to the settlement agreement entered only four

months earlier. Father testified that the income figures reflected on that worksheet had not

substantially changed in the interim. Neither Father nor Mother submitted signed or

verified worksheets at the hearing. We have urged trial courts in the exercise of their

discretion to require verified child support worksheets in every case. Butterfield v.

Constantine, 864 N.E.2d 414, 417 (Ind. Ct. App. 2007). However, in this case, we conclude

that Mother’s failure to object to the trial court taking judicial notice of the unsigned and

unverified worksheet upon which the initial child support amount was figured constituted

a waiver of her right to appeal the trial court’s order on the grounds that the worksheet the

trial court used was unsigned and unverified. See id. (holding that father waived his right

to appeal the trial court’s child support order on the grounds that mother submitted an

unverified worksheet because father also failed to produce a verified worksheet or any

relevant evidence, failed to object to mother’s lack of a verified worksheet, and tacitly

agreed to proceed without a verified worksheet). Waiver notwithstanding, we conclude

the trial court acted within its discretion in modifying the child support order due to the

change in primary physical custody from Mother to Father. The trial court also acted within

                                             12
its discretion in figuring the modified child support based upon the previous child support

worksheet in light of the fact that so little time had passed since the worksheet had

originally been prepared, Father testified that the figures had not changed, and Mother did

not submit her own worksheet or otherwise challenge the income figures.

                                        Conclusion

       For the foregoing reasons, we conclude that the trial court did not abuse its

discretion in granting Father’s petition to modify custody or in modifying the child support

order to reflect that change. We therefore affirm the judgment of the trial court.

       Affirmed.

BAKER, J., and KIRSCH, J., concur.




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