MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Dec 06 2019, 8:53 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Nicholas J. Hursh                                        Justin R. Wall
Shambaugh, Kast, Beck &                                  Wall Legal Services
Williams, LLP                                            Huntington, Indiana
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry Honeycutt,                                         December 6, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-JP-1516
        v.                                               Appeal from the Wabash Circuit
                                                         Court
Ashten Harmon,                                           The Honorable Robert R.
Appellee-Petitioner                                      McCallen, III, Judge
                                                         Trial Court Cause No.
                                                         85C01-1608-JP-55



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019                    Page 1 of 12
[1]   Terry Honeycutt (Father) appeals the trial court’s order granting Ashten

      Harmon’s (Mother) request to relocate A.H. (Child) to Florida, arguing that (1)

      the relocation was not made in good faith and there were no legitimate reasons

      supporting the relocation; and (2) relocation was not in Child’s best interests.

      Finding no error, we affirm.


                                                     Facts
[2]   Child was born to Father and Mother, who have never married, on October 16,

      2007. Mother has since married her current husband (Mother’s Husband). Nine

      years later, on December 16, 2016, Father and Mother filed a stipulation order

      establishing paternity, support, payment of uninsured medical expenses,

      visitations, and custody of Child, which was later approved by the trial court.

      Pursuant to that stipulation order, Father and Mother agreed that Father and

      Mother would retain joint legal custody of Child; Father would have Sunday,

      Tuesday, and Thursday overnights with Child; Father and Mother would

      coordinate transportation and care for Child; and Father would not pay child

      support. See generally Appellant’s App. Vol. II p. 10-11.


[3]   On January 4, 2019, Mother filed a notice of intent to relocate to Fort Myers,

      Florida—roughly 1,200 miles away—by January 21, 2019. The notice stated

      that Child would relocate with Mother to Florida in June 2019 after Child

      completed the spring semester at his current school. Additionally, Mother

      proffered the following reasons why they would be relocating and why she filed

      with such short notice:


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019   Page 2 of 12
              a. [Mother’s Husband] was offered a partnership opportunity at a
              land surveying company based out of Bonita Springs, FL;

              b. [Mother’s Husband] was provided with a formal, written offer
              of employment, and accepted same, on January 3, 2019;

              c. [Mother’s Husband’s] offer requires him to begin employment
              on February 4, 2019;

              d. That the contract on [Mother’s] home is ending on January 31,
              2019 and [Mother] is unable to remain in the home and will be
              required to move her residence;

              e. That [Mother] and [Mother’s Husband] do not have the
              financial means to support the expenses of maintaining two
              different residences, even on a temporary basis; and

              f. That [Mother’s Husband] is the primary source of income and
              [Mother] will need to relocate with her husband.


      Id. at 15-16. On January 9, 2019, Father filed an objection to the notice of

      relocation, a request for an emergency temporary order restraining Mother from

      relocating Child, and a motion to modify custody. The trial court summarily

      denied Father’s request for an emergency temporary order because Child would

      not be relocated until June 2019.


[4]   On April 10 and May 23, 2019, the trial court held a bifurcated evidentiary

      hearing on all pending motions, at which multiple individuals—including

      Mother, Father, and Mother’s Husband—testified. After Mother and Father

      tendered final written arguments, on June 11, 2019, the trial court issued an

      order granting Mother’s request to relocate Child to Florida and denying

      Father’s motion to modify custody. The trial court found and held, in pertinent

      part, as follows:
      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019   Page 3 of 12
                                     RELOCATION

        [Mother] has to prove that the proposed relocation is made in
        good faith and for a legitimate reason. Despite the distance
        involved, [Mother] has met that burden.[fn3]

                 -fn3—While the decision to move to Florida was made
                 quickly, that does not dictate that it was not for a legitimate
                 reason or done in bad faith. Further [Mother and Mother’s
                 Husband] had been thinking about such a move for some
                 time.

        [Mother’s Husband] was offered a better job, with better benefits, a
        potential partnership and a work schedule that would allow him
        more time to spend with his family. However, he had to accept
        that job quickly. Additionally, [Mother] has obtained a better job
        with a work schedule that will likewise allow her to spend more
        time with [Mother’s Husband] and her children. The Court thinks
        the financial circumstances of [Mother and Mother’s Husband] are
        better in Florida, despite the debt they have taken on.

        In addition, [Mother and Mother’s Husband] were buying a home
        on contract in Indiana. Due to title problems, that deal collapsed.
        As a result, they had to find another home.

        Further, [Mother’s] future career plans are better accommodated
        living in Florida.[fn4] Clearly, [Mother and Mother’s Husband]
        want to provide the best possible life for themselves and their
        children.

                 -fn4—While she initially testified she wants to go to law
                 school, she is now pursuing a paralegal certification. Both
                 goals reflect that she is thinking about her future and the
                 future of her family by pursuing opportunities to improve
                 herself.

                               [CHILD’S] BEST INTERESTS

        Having found that [Mother] met her burden of proof, the burden
        shifts to [Father] to show that the proposed relocation is not in the
        best interests of [Child].


Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019   Page 4 of 12
        It is important to the Court that while [Child] is 11, paternity was
        not established until 2016. The issue of [Father’s] role in [Child’s]
        life, before paternity was established, is disputed. The Court
        believes [Mother] has been [Child’s] primary caregiver (both
        emotionally and financially) for the majority of [Child’s] life.
        [Father] has certainly been involved, but not so much in a parental
        role. The Court finds his involvement prior to the establishment of
        paternity was more of a caretaker/daycare provider, than father.
        After paternity was established, [Father’s] involvement with
        [Child] improved. However, his involvement has still not been
        substantial and he has not even exercised all of the parenting time
        the parties agreed to.[fn5] Further, while he and [Mother] agreed he
        would not pay child support, he has done little, financially, to
        assist [Mother] in raising [Child].

                 -fn5—[Mother] and [Father] agreed to a parenting time plan
                 for [Father] that gave him more time with [Child] than
                 would have occurred under the Indiana Parenting Time
                 Guidelines. That agreement was made an Order of the
                 Court. That reflects that [Mother] recognized the important
                 role [Father] should play in [Child’s] life as his father.

        The Court recognizes that [Father’s] contact with [Child] will be
        diminished by the relocation because they see each other
        frequently. However, the Court believes that [Mother and
        Mother’s Husband] will do their best to minimize that by frequent
        trips back to Wabash. Additionally, in this day and age, the ability
        for communication and even face to face contact between [Father]
        and [Child] can likewise lessen the blow. As addressed below, the
        Court will deviate from the child support guidelines to provide
        [Father] more income to engage in parenting where distance is a
        factor.

        The Court also has serious reservations about what type of
        relationship [Father] would accommodate between [Child],
        [Mother], and [Mother’s] extended family if he had primary
        physical custody. That does not seem to be a priority of [Father’s];
        whereas, [Mother’s] actions reflect a willingness and desire to
        facilitate contact between [Child], [Father], and [Father’s]
        extended family.

                                             ***

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019   Page 5 of 12
              Undoubtedly, [Father], his mother, and their extended family are
              important to [Child] and vice versa. However, separating [Child]
              from his mother is not in [Child’s] best interests.[fn6]

                       -fn6—The Court is troubled that [Mother] testified she is
                       relocating to Florida regardless of the Court’s decision.
                       However, the Court believes she never imagined the Court
                       would deny her relocation or not allow [Child] to move
                       with her. While that was risky, in the end, her belief was
                       right. It would not be appropriate for the Court to “punish”
                       her arrogance by making a decision that would not be in
                       [Child’s] best interest.

              The Court believes [Mother] will do all that she can to promote
              [Child’s] contact with all of his family, on both sides.

              [Mother] desires to improve her lot in life and take advantage of
              opportunities available to her. While her plans may change from
              time to time, the reasons for those changes are thoughtful and
              reasonable. She will take full advantage of any new opportunities
              to enrich [Child’s] life. [Mother and Mother’s Husband] are good
              role models for [Child]. They have researched the schools [Child] .
              . . will attend and they sincerely believe they are good.

              [Father] does not appear motivated to achieve his full potential.
              Instead, he is content living with his mother, in her house.

              [Father] has not met his burden of proof. [Mother’s] request to
              relocate with [Child] to Florida is granted.


      Id. at 23-26 (footnotes in original). Father now appeals.


                                   Discussion and Decision
[5]   On appeal, Father argues that the trial court erred when it granted Mother’s

      request to relocate with Child to Florida, contending that (1) the relocation was




      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019   Page 6 of 12
      not made in good faith and there were no legitimate reasons supporting the

      relocation; and (2) relocation was not in Child’s best interests.


                                             Standard of Review

[6]   Our standard of review for these cases is well settled:


              [W]hen reviewing the specific findings and conclusions thereon,
              we must first determine whether the record supports the factual
              findings, and then whether the findings support the judgment. On
              appeal, we will not set aside the findings or judgment unless they
              are clearly erroneous, and due regard shall be given to the
              opportunity of the trial court to judge the credibility of the
              witnesses. We therefore consider only the evidence favorable to
              the judgment and the reasonable inferences flowing therefrom, and
              we will neither reweigh the evidence nor assess witness credibility.
              A judgment is clearly erroneous when there is no evidence to
              support the findings, the findings do not support the judgment, or
              the trial court applies the wrong legal standard to properly found
              facts.


      M.S. v. C.S., 938 N.E.2d 278, 281-82 (Ind. Ct. App. 2010) (internal citations and

      quotations omitted); see also Ind. Trial Rule 52(A).


[7]   Furthermore:


              [T]here is a well-established preference in Indiana “for granting
              latitude and deference to our trial judges in family law matters.” In
              re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993). 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 Brickely v. Brickely, 247 Ind. 201, 204, 210
              N.E.2d 850, 852 (1965)). “On appeal it is not enough that the
              evidence might support some other conclusion, but it must

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019   Page 7 of 12
               positively require the conclusion contended for by appellant before
               there is a basis for reversal.” Id. “Appellate judges are not to
               reweigh the evidence nor reassess witness credibility, and the
               evidence should be viewed most favorably to the judgment.” Best
               v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted).


      Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).


                                    Good Faith and Legitimate Reasons

[8]   After a relocating parent files a notice of relocation, the nonrelocating parent

      may object and the trial court shall hold an evidentiary hearing to rule on that

      objection. Ind. Code § 31-17-2.2-5(a)-(b).1 First, “[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). The trial court concluded that Mother

      had met that burden by showing that her and her family’s financial

      circumstances would be improved by moving to Florida. Father disputes these

      findings and argues that Mother’s contradictory testimony demonstrates that

      her reasons for relocating were not legitimate and the relocation was not made

      in good faith.


[9]   In defining potential “good faith and legitimate reasons” for a parent and child

      to relocate, this Court has held that “it is common in our society that people

      move to live near family members, for financial reasons, or to obtain or




      1
        Throughout this opinion, we are citing the version of the relocation statute that was in effect at the time
      Mother first filed the notice of relocation. This statute has since been amended, and the latest version went
      into effect on July 1, 2019.

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019                   Page 8 of 12
       maintain employment.” T.L. v. J.L., 950 N.E.2d 779, 787-88 (Ind. Ct. App.

       2011). And so, “[w]e infer that these and similar reasons . . . are what the

       legislature intended in requiring that relocation be for ‘legitimate’ and ‘good

       faith’ reasons.” Id. at 788.


[10]   Here, the trial court concluded that Mother and Mother’s Husband were

       attempting to better their lives and economic situation by relocating to Florida.

       Mother’s Husband attained a more secure job with greater pay and benefits,

       and Mother was seeking to further her education through either a part-time law

       school program or a paralegal certification program. Furthermore, their housing

       contract for a property in Wabash had fallen through, but they were able to

       obtain housing in Florida if they immediately relocated. In other words, the

       trial court found that Mother was relocating with Child to obtain better

       employment, to increase her income, and to keep her immediate family

       together.


[11]   We hold that the trial court did not err in making these findings and then

       concluding that these were legitimate reasons and the relocation was made in

       good faith. Even if Mother contradicted herself at the evidentiary hearing, it

       was ultimately the trial court’s decision to weigh her evidence against Father’s

       and to determine whether Mother’s statements were credible. Most of Father’s

       argument is comprised of a request that we reweigh the evidence in his favor,

       which we may not do. As previously stated, we defer heavily to the trial court’s

       findings and conclusions in matters of custody, relocation, divorce, and other

       family law disputes because the trial court gets to examine the witnesses and all

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019   Page 9 of 12
       the evidence firsthand. Nothing in this record leads us to second-guess the trial

       court’s findings and conclusions.


[12]   Therefore, we conclude that the trial court did not err in finding that Mother’s

       financial circumstances and her desire to obtain better housing and to live with

       her husband and Child in one location were legitimate reasons causing a good

       faith relocation. Thus, Mother has met her burden of proof.


                                                 Child’s Best Interests

[13]   Next, “[i]f the relocating individual meets the burden of proof under subsection

       (c), the burden shifts to the nonrelocating parent to show that the proposed

       relocation is not in the best interest of the child.” I.C. § 31-17-2.2-5(d).


[14]   Pursuant to Indiana Code section 31-17-2.2-1(b),2 trial courts shall take the

       following into consideration when determining whether relocation is in the

       child’s best interests:


                (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.




       2
         Similar to our explanation in footnote 5, we are citing the version of this statute that was in effect at the
       time Mother filed the notice of relocation.

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019                      Page 10 of 12
               (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 seeking relocation; and

                        (B) nonrelocating parent for opposing the relocation of the
                        child.

               (6) Other factors affecting the best interest of the child.


[15]   In its order, the trial court focused primarily on the role that Father played in

       Child’s life. The trial court found that Mother has been “[Child’s] primary

       caregiver (both emotionally and financially) for the majority of [Child’s] life.”

       Appellant’s App. Vol. II p. 24. Additionally, the trial court found that Father

       has not been nearly as involved, serving less in a parental role and more in the

       role of “caretaker/daycare provider[.]” Id. Further, Father neglected to establish

       paternity of Child until 2016 (after Child was already nine years old), did not

       pay much, if anything, in the way of child support, and did not take advantage

       of the full range of parenting time he was allotted pursuant to the trial court’s

       December 16, 2016, stipulation order.


[16]   Every step of the way, Mother has been loving and caring towards Child and

       accommodating to Father’s desires to be a present parent. Even after Mother

       decided to relocate to Florida with Mother’s Husband to get better housing,

       education, and employment, the trial court still found that “[Mother’s] actions

       reflect a willingness and desire to facilitate contact between [Child], [Father],

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019   Page 11 of 12
       and [Father’s] extended family.” Id. at 25. In other words, the trial court

       concluded that given Mother’s greater maturity, willingness to comprise, and

       overall responsibility as primary caregiver to Child, it is in Child’s best interests

       to relocate with Mother and Mother’s Husband to Florida.


[17]   Based on the evidence in the record and the trial court’s findings, we hold that

       the trial court did not err in concluding that Mother’s decision to relocate Child

       to Florida was in Child’s best interests. Once again, any argument by Father

       that we reconsider witnesses, financial figures, aspects of his emotional

       relationship with Child, or other evidence amounts to a request that we reweigh

       the evidence, which we may not do. Though we do not dispute the earnestness

       of Father’s attempts to maintain closer physical proximity to Child, we are not

       free to second-guess the trial court’s judgment based on disputed evidence that

       it has already thoughtfully reviewed and weighed.


[18]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1516 | December 6, 2019   Page 12 of 12
