      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              Jun 05 2019, 9:03 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
      Cody Cogswell
      Cogswell & Associates, LLC
      Fishers, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA
      Damon Conner,                                            June 5, 2019
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               18A-DR-2193
              v.                                               Appeal from the Madison Circuit
                                                               Court
      Amanda Conner,                                           The Honorable G. George Pancol,
      Appellee-Respondent.                                     Judge
                                                               The Honorable Kevin M. Eads,
                                                               Magistrate
                                                               Trial Court Cause No.
                                                               48C02-1406-DR-318



      Mathias, Judge.


[1]   Damon Conner (“Father”) appeals the Madison Circuit Court’s order

      modifying custody of his minor child and granting Amanda Conner’s


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019                    Page 1 of 14
      (“Mother”) request to relocate. Father also appeals the trial court’s order

      concerning the tax exemption for the parties’ minor child.

[2]   We affirm in part, reverse in part, and remand for proceedings consistent with

      this opinion.


                                 Facts and Procedural History

[3]   Mother and Father’s marriage was dissolved in 2016, and the parties have one

      child, eight-year-old D.C. The parties lived approximately eight blocks apart

      and shared joint custody of D.C. Physical custody alternated weekly, and

      exchange of custody occurred on Fridays.


[4]   On March 26, 2018, Father filed a petition to modify parenting time and

      custody. In his motion, Father requested sole physical custody due to changes

      in D.C.’s school performance and Mother’s lack of communication with

      Father. The court held a hearing on Father’s petition on April 25, 2018.

      Because all evidence could not be heard in the allotted time, the hearing was

      continued.


[5]   On June 8, 2018, Mother filed a counter-petition to modify custody. Mother

      requested sole physical custody of D.C. because Father refused to communicate

      with her and was “impossible to co-parent with.” Appellant’s App. p. 29. And

      Mother argued a change in circumstances because she was no longer employed

      and was able to stay home full time with D.C. Approximately two weeks later,

      Mother also filed a notice of intent to relocate because her fiancé’s new



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 2 of 14
      employment required a move to the Lafayette, Indiana area. Father objected to

      Mother’s request to relocate D.C.

[6]   A hearing was held on all pending petitions and motions on August 28, 2018.

      The evidence presented at the hearing established the acrimonious nature of

      Mother and Father’s relationship. Both parents testified to a lack of

      communication, including the fact that Mother had blocked text messages from

      Father for a period of time. Father argued that D.C.’s school performance

      suffered during the weeks that he stayed at Mother’s home. Mother alleged that

      Father interfered with her parenting time and called her foul names in front of

      their child. Mother and her fiancé also testified that he had obtained new

      employment with higher pay, but his new job required a move to the Lafayette

      area.1


[7]   On August 29, 2018, the trial court issued an order granting Mother’s request to

      relocate, and specifically the court’s order provides in pertinent part:


                 The parties are the parents of a son, [D.C.], age eight (8) years.
                 Custody has been joint and the parents have alternated weeks as
                 an equal time share with their son.

                 [D.C.] has had some behavioral and scholastic challenges owing
                 to a diagnosis as being ADHD. A combination of medication
                 and therapy has improved both his behavior and his academic
                 performance.




      1
          Mother and her fiancé planned to marry in September 2018. Tr. p. 112.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019    Page 3 of 14
        Both parents have talents they contribute to their son’s
        upbringing; however, both freely acknowledge, and the court
        concludes, that they have considerable difficulty in
        communicating and cooperating as co-parents. Mother is in a
        long-term relationship which is scheduled to result in marriage in
        less than a month. She is expecting a child with her anticipated
        husband. His work will require a relocation closer to Lafayette,
        Indiana, because of a work requirement that he reside within an
        area which precludes he and Mother remaining in Elwood.
        Although Mother had worked full time previously, her current
        plan is to remain at home with her oldest daughter, [D.C.], and
        her expected child.

        Father works extended hours during good weather and has
        limited time at home during the week. Step-mother has been
        involved beneficially in [D.C.’s] life.

        No parent is perfect; and, here, neither parent is inadequate.
        Together, they have done a creditable job of raising their son
        despite their difficulties with each other. The court notes that the
        difficulties the parties have will likely exist in their parental
        relationship no matter what the custody format is.

        The parties shall continue to share joint legal and physical
        custody and shall have the obligation to consult one another
        regarding significant decisions concerning their son. Mother’s
        motives for relocating closer to the Lafayette area are appropriate
        and the court authorizes that relocation in light of this order. The
        court has concern about [D.C.’s] educational consistency,
        especially in light of his past difficulties. Thus, [D.C.] will remain
        in his current school district for the first semester of the 2018-
        2019 school year.

        For now, the parties will continue their alternating week schedule
        with [D.C.] until Mother moves. Following Mother’s relocation,
        [D.C.] will live principally with Father for the remainder of the
        first semester of the current school year and Mother will have not
        less than Indiana Parenting Time Guidelines together with the

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 4 of 14
               same provisions for her to have “additional time” as are set forth
               below for Father. With the start of the second semester, Mother
               shall have primary physical custody and Father shall have such
               time as the parties may agree. In the event of disagreement,
               Father shall have not less than Indiana Parenting Time
               Guidelines together with the following additional time:

               In February, April, and September of each year, Father shall
               have an additional weekend, which shall be the last full weekend
               (meaning both Saturday and Sunday falling within the same
               calendar month) which would not already be his regular
               weekend. In December of each year, Father shall have an
               additional weekend which shall be the first full weekend which
               would not already be his weekend.

               Each party shall have reasonable telephone, text, e-mail, and/or
               video chat with their son while he is with the other parent.

       Appellant’s App. pp. 37–39.

[8]    Two days later, the trial court issued an order concerning the tax exemption for

       D.C. The court awarded the tax exemption to Father. However, the court also

       ordered, “[a]t such time as Mother returns to full time employment, the parties

       shall alternate the exemption with Mother being entitled to claim the exemption

       for the first year that she has been employed full time for at least nine (9)

       months of the year.” Id. at 43.


[9]    Father now appeals.


                                          Standard of Review

[10]   Initially, we observe that Mother failed to file an Appellee’s brief, and we will

       not undertake the burden of developing arguments for her. Jenkins v. Jenkins, 17


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 5 of 14
       N.E.3d 350, 351 (Ind. Ct. App. 2014). Instead, we apply a less stringent

       standard of review and will reverse upon a showing of prima facie error, which

       is error “at first sight, on first appearance, or on the face of it.” Orlich v. Orlich,

       859 N.E.2d 671, 673 (Ind. Ct. App. 2006). However, to determine whether

       reversal is required, we are still obligated to correctly apply the law to the facts

       in the record. Jenkins, 17 N.E.3d at 352.


[11]   Importantly, our supreme court has expressed a preference for granting latitude

       and deference to our trial judges in family law matters. Steele-Giri v. Steele, 51

       N.E.3d 119, 124 (Ind. 2016). “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.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “Thus

       enabled to assess credibility and character through both factual testimony and

       intuitive discernment, our trial judges are in a superior position to ascertain

       information and apply common sense, particularly in the determination of the

       best interests of the involved children.” Id.


[12]   Modifications of child custody, parenting time, and child support are all

       reviewed for an abuse of discretion. Miller v. Carpenter, 965 N.E.2d 104, 108

       (Ind. Ct. App. 2012). We neither reweigh the evidence nor assess witness

       credibility. Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010).

       Rather, we consider only the evidence and inferences most favorable to the trial

       court's judgment. Id. “‘On appeal it is not enough that the evidence might

       support some other conclusion, but it must positively require the conclusion

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 6 of 14
       contended for by appellant before there is a basis for reversal.’” Steele-Giri, 51

       N.E.2d at 124 (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)).


                           Custody Modification and Relocation
[13]   Father argues that the trial court abused its discretion when it granted Mother’s

       request to relocate and modified custody of D.C. In addition to Mother’s

       petition to relocate, both parties filed motions to modify custody.


[14]   Indiana Code section 31-17-2-21 provides in pertinent part that a trial court

       “may not modify a child custody order unless”


               (1) the modification is in the best interests of the child; and

               (2) there is a substantial change in one (1) or more of the factors
               that the court may consider under section 8 and, if applicable,
               section 8.5 of this chapter.

[15]   The factors the court must consider, which are listed in Indiana Code section

       31-17-2-8 include

               (1) The age and sex of the child.

               (2) The wishes of the child’s parent or parents.

               (3) The wishes of the child, with more consideration given to the
               child's wishes if the child is at least fourteen (14) years of age.

               (4) The interaction and interrelationship of the child with:

                        (A) the child’s parent or parents;

                        (B) the child’s sibling; and




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 7 of 14
                        (C) any other person who may significantly affect the
                        child’s best interests.

               (5) The child’s adjustment to the child’s:

                        (A) home;

                        (B) school; and

                        (C) community.

               (6) The mental and physical health of all individuals involved.

               (7) Evidence of a pattern of domestic or family violence by either
               parent.

[16]   Even where there has not been a substantial change in one or more of the

       statutory factors affecting the best interests of the child set forth in section 31-

       17-2-8, a change in custody may be ordered due to relocation of a parent. In re

       Paternity of J.J., 911 N.E.2d 725, 729 (Ind. Ct. App. 2009) (citing Baxendale v.

       Raich, 878 N.E.2d 1252, 1257 (Ind. 2008)). Mother filed a notice of intent to

       move as required by Indiana Code section 31-17-2.2-1. Father objected to

       prevent D.C.’s relocation. See Ind. Code §§ 31-17-2.2-1(b); 31-17-2.2-5(a).

       Therefore, Mother bore 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 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.” Ind. Code § 31-17-2.2-5(d). Moreover,

               The court shall take into account the following in determining
               whether to modify a custody order, parenting time order,
               grandparent visitation order, or child support order:

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 8 of 14
               (1) The distance involved in the proposed change of residence.

               (2) The hardship and expense involved for the nonrelocating
               individual to exercise parenting time or grandparent visitation.

               (3) The feasibility of preserving the relationship between the
               nonrelocating individual and the child through suitable parenting
               time and grandparent visitation arrangements, including
               consideration of the financial circumstances of the parties.

               (4) Whether there is an established pattern of conduct by the
               relocating individual, including actions by the relocating
               individual to either promote or thwart a nonrelocating
               individual’s contact with the child.

               (5) The reasons provided by the:

                        (A) relocating individual for seeking relocation; and

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

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

       Ind. Code § 317-17-2.2-1(b).

[17]   Father argues that the trial court “failed to address the appropriate factors in a

       modification proceeding and a relocation of a parent.” Appellant’s Br. at 19.

       The trial court is required to consider all the factors in section 31-17-2.2-1(b). In

       re Marriage of Harpenau, 17 N.E.3d 342, 347 (Ind. Ct. App. 2014). The

       relocation statutes do not require findings, but there must be evidence in the

       record on the factors. Wolljung v. Sidell, 891 N.E.2d 1109, 1113 (Ind. Ct. App.

       2008); see Harpenau, 17 N.E.3d at 347 (“Although the trial court did not make

       specific findings about each factor, our review of the record shows that there



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 9 of 14
       was sufficient evidence of each relevant factor to support the trial court’s

       decision.”)

[18]   The trial court heard evidence on each enumerated factor. Mother testified that

       her fiancé obtained new employment that required him to live within thirty

       minutes of Lafayette. They intend to live in Mulberry, Indiana, which is twenty

       minutes east of Lafayette. Tr. pp. 111–12. The travel time between Mulberry

       and Elwood is approximately one hour. Mother, who was pregnant on the date

       of the hearing, intends to stay at home full time with the children.

[19]   The distance between the two cities is relatively minimal. However, the parties

       shared equal parenting time with D.C. prior to the order allowing relocation.

       Therefore, Father’s parenting time with D.C. has decreased. Consequently, the

       trial court awarded Father four additional weekends per year. Moreover, the

       evidence supports the trial court’s finding that due to Father’s work schedule,

       Father was unable to spend significant time with D.C. during the week, and

       D.C.’s step-mother was his main caregiver during Father’s parenting time.

[20]   Father and D.C. share a strong bond, and the evidence suggests that the

       relocation will not affect their relationship. Father will still share significant

       parenting time with D.C. Father did not present any evidence that exercising

       parenting time with D.C. after the relocation would cause hardship, financial or

       otherwise.


[21]   Both parties presented evidence that the parties’ relationship is acrimonious and

       they lack good communication skills. However, neither party has prevented the

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 10 of 14
       other from communicating with D.C. And there is no evidence that Mother has

       engaged in an established pattern of conduct to thwart Father’s contact with

       D.C.2


[22]   Father cites primarily to the communication issues between the parties, D.C.’s

       school performance, and his strong bond with D.C. to support his argument

       that relocation is not in D.C.’s best interests. Further, Father argues that this

       evidence supported his own petition to modify custody.


[23]   D.C. struggled in kindergarten and repeated the grade. The evidence in the

       record establishes that Father and step-mother played a key role in helping D.C.

       improve his performance in school. D.C. had trouble focusing in school, and he

       was placed on medication shortly before the hearing in this case. The

       medication has made a significant, positive difference in D.C.’s school

       performance, and both Mother and Father support continuing D.C. on the

       medication. Moreover, D.C. has a strong bond with both of his parents, and the

       communication issues between the parties have not interfered with their

       respective relationships with D.C.


[24]   For all of these reasons, we affirm the trial court’s order granting Mother’s

       request to relocate.




       2
        The parties both testified that the other parent attempted to prevent contact with D.C. on certain limited
       occasions, but those circumstances generally involved sporadic school events such as a field trip or class
       party. This evidence did not establish a pattern of behavior to attempt to thwart contact with the child.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019                     Page 11 of 14
                                              Tax Exemption

[25]   Father also argues that the trial court erred when it ordered that Mother and

       Father will alternate the tax exemption for D.C. if or when Mother “returns to

       full time employment.” See Appellant’s App. p. 43. Father observes that the

       trial court is required to consider statutorily enumerated factors to determine

       which parent may claim the child has a dependent.


[26]   First, we observe that for tax exemption purposes, “[t]he federal tax code

       automatically grants to a custodial parent the dependency exemption for a child

       but permits an exception where the custodial parent executes a written waiver

       of the exemption for a particular tax year.” Bogner v. Bogner, 29 N.E.3d 733, 744

       (Ind. 2015) (citations omitted). The trial court may order the custodial parent to

       waive the dependency tax exemption. See Ind. Child Supp. Guideline 9

       (“Judges and practitioners should be aware that under current law the court

       cannot award an exemption to a parent, but the court may order a parent to

       release or sign over the exemption for one or more of the children to the other

       parent pursuant to Internal Revenue Code § 152(e). To effect this release, the

       parent releasing the exemption must sign and deliver to the other parent I.R.S.

       Form 8332, Release of Claim to Exemption for Child of Divorced or Separated

       Parents.”).


[27]   Indiana Code section 31-16-6-1.5(b) provides that the trial court “shall”

       consider the following factors to determine which parent may claim the child as

       a dependent:


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 12 of 14
                (1) The value of claiming the child as a dependent at the
                marginal tax rate of each parent.

                (2) The income of each parent.

                (3) The age of the child or children and the number of years that
                the child or children could be claimed as a dependent or
                dependents.

                (4) Each parent’s percentage of the costs of supporting the child
                or children.

                (5) If applicable, the financial aid benefit for postsecondary
                education for the child or children.

                (6) If applicable, the financial burden each parent assumed under
                the property settlement in a dissolution proceeding.

                (7) Any other relevant factors.

       See also Child Supp. G. 9.


[28]   The trial court erred when it ordered the parties to alternate the tax exemption if

       Mother rejoins the workforce full time. Because Mother is not currently

       employed, and has no plans for future employment, the trial court could not

       have considered the factors enumerated in Indiana Code 31-16-6-1.5 or Child

       Support Guideline 9 when it ordered the parties to alternate the tax exemption

       in the future when Mother rejoins the workforce.3 If Mother obtains full-time




       3
        Father also argues that the trial court erred when it ordered Mother to “execute IRS Form 8332 as
       necessary to effectuate this order.” We agree that for the 2018 tax year, it was not necessary for Mother to
       execute Form 8332 because Father was D.C.’s custodial parent for that year as defined in 26 U.S.C.
       152(e)(4)(A). To the extent that the trial court’s order required Mother to execute the form as necessary for
       Father to claim the exemption in future years, the order is appropriate.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019                       Page 13 of 14
       employment at some point in the future, the trial court must consider the

       parties’ circumstances and the statutory and Guideline 9 factors at that time.

       Therefore, we reverse the trial court’s August 30, 2018 order concerning the tax

       exemption and remand for proceedings consistent with this opinion.


                                                 Conclusion

[29]   The trial court did not abuse its discretion when it granted Mother’s request to

       relocate. However, we reverse the trial court’s August 30, 2018 order

       concerning the tax exemption and remand for proceedings consistent with this

       opinion.


[30]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2193 | June 5, 2019   Page 14 of 14
