MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be                              May 21 2018, 5:58 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Brandon Rush                                             Jeffrey Elftman
Rush Law Office, LLC                                     Kokomo, Indiana
Peru, Indiana

Sharon L. Breitenbach
Breitenbach Law
Peru, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of G.H. and                          May 21, 2018
J.H. (Minor Children):                                   Court of Appeals Case No.
                                                         17A-JP-3011
R.H.,
                                                         Appeal from the Cass Circuit
Appellant-Petitioner,                                    Court
        v.                                               The Honorable Leo T. Burns,
                                                         Judge
H.W.,                                                    Trial Court Cause Nos.
                                                         09C01-1207-JP-57
Appellee-Respondent.                                     09C01-1207-JP-58



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018                Page 1 of 9
                                       Statement of the Case
[1]   R.H. (“Father”) appeals the trial court’s order denying his petition to modify

      custody of his two children with H.W. (“Mother”). Father presents a single

      issue for our review, namely, whether the court abused its discretion when it

      denied his petition. We affirm.


                                 Facts and Procedural History
[2]   Father and Mother have two minor children together, G.H. and J.H. (“the

      Children”), who were both born out-of-wedlock. After Father established his

      paternity with the trial court, the court awarded primary physical custody of the

      Children to Mother and parenting time to Father. In February 2017, Father

      and his family, which includes his wife and their five children, moved to

      Bunker Hill.


[3]   In March 2017, Mother began dating R.S. Also that month, Mother and Father

      discussed enrolling the Children in the Maconaquah school district. In June,

      Mother moved into a residence in Peru. In July, Father registered the Children

      in the Maconaquah school district. In late July, Mother notified Father by text

      message that she and the Children were moving to Flora to live with R.S. one

      week later. Mother also informed Father that she intended to enroll the

      Children in another school. Mother did not file a notice of intent to relocate

      with the trial court.


[4]   On August 1, Father filed with the trial court a motion to prevent relocation,

      request for temporary order to restrain relocation, and motion for modification

      Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018   Page 2 of 9
      of custody.1 The trial court held a hearing on Father’s motions, which Mother

      did not attend, and on August 18, the court issued an order granting Father

      temporary physical custody of the Children. The court “rescind[ed]” that order

      on August 24, but ordered that the Children continue to attend school in the

      Maconaquah school district. Appellant’s App. Vol. II at 8. Following an

      evidentiary hearing on November 16, the trial court denied Father’s motion to

      modify custody. This appeal ensued.


                                        Discussion and Decision
[5]   Father contends that the trial court abused its discretion when it denied his

      motion to modify custody. We review custody modifications for an abuse of

      discretion, with a “preference for granting latitude and deference to our trial

      judges in family law matters.” Wolljung v. Sidell, 891 N.E.2d 1109, 1111 (Ind.

      Ct. App. 2008) (quoting Apter v. Ross, 781 N.E.2d 744, 757 (Ind. Ct. App. 2003),

      trans. denied). We will not reweigh the evidence or judge the credibility of the

      witnesses. Id. Rather, we consider only the evidence most favorable to the

      judgment and any reasonable inferences from that evidence. Id.


[6]   Indiana Code Section 31-17-2.2-1 provides in relevant part as follows:


                (a) A relocating individual must file a notice of the intent to
                move with the clerk of the court that:




      1
          Father has not included his motion in his appendix on appeal.


      Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018   Page 3 of 9
                 (1) issued the custody order or parenting time order;
                 or

                 (2) if subdivision (1) does not apply, has jurisdiction
                 over the legal proceedings concerning the custody of
                 or parenting time with a child;

        and send a copy of the notice to any nonrelocating individual.

        (b) Upon motion of a party, the court shall set the matter for a
        hearing to review and modify, if appropriate, a custody order,
        parenting time order, grandparent visitation order, or child
        support order. 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:

                 (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:



Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018   Page 4 of 9
                                 (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.


      The “other factors affecting the best interest of the child” include, by

      implication, the factors set forth for custody determinations and modifications

      under Indiana Code Section 31-17-2-8. H.H. v. A.A., 3 N.E.3d 30, 34 (Ind. Ct.

      App. 2014).


[7]   In relocation cases, there is an interplay between the custodial modification

      statute, Indiana Code Section 31-17-2-21, and the relocation statutes, Indiana

      Code 31-17-2.2-1 through -6. Wolljung, 891 N.E.2d at 1113. While there is

      some overlap between the two statutes, both are in play and must be

      considered. Id. Given the specific command of the legislature as stated in the

      relocation statute, the trial court is required to take into account all of the

      factors under Section 31-17-2.2-1(b).


[8]   Father first contends that the trial court did not comply with Indiana Code

      Section 31-17-2.2-5(c), which puts the burden of proof on the relocating parent

      to prove that a move is made “in good faith and for a legitimate reason.”2 In




      2
        We note that Father does not contend that Mother’s failure to file with the trial court a notice of her intent
      to relocate has any bearing on the issue on appeal. See, e.g., Gold v. Weather, 14 N.E.3d 836, 942 (Ind. Ct.
      App. 2014) (holding a trial court can consider noncompliance with the statutory notice provision as

      Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018                         Page 5 of 9
       particular, Father maintains that, at the conclusion of the evidentiary hearing,

       the trial court’s statements in open court indicated that it did not require

       Mother to satisfy her burden of proof. We cannot agree.


[9]    As this court has explained,


                our body of case law has not explicitly set forth the meaning of
                legitimate and good faith reasons in the relocation context. [T.L.
                v. J.L.,] 950 N.E.2d [779,] 787[ (Ind. Ct. App. 2011)]. However,
                [in T.L.,] we observed that “it is common in our society that
                people move to live near family members, for financial reasons,
                or to obtain or maintain employment.” Id. at 787-88. Thus, we
                inferred that these and similar reasons are what the legislature
                intended in requiring that relocation be for “legitimate” and
                “good faith” reasons. Id. at 788. We further noted that, as the
                relocation statute provides and the Indiana Supreme Court has
                observed, the resolution of relocation disputes ultimately turns on a
                judicial determination of the best interests of the child, part two of the
                two-prong standard. Id. (citing Baxendale[ v. Raich], 878 N.E.2d
                [1252,] 1256 n.5[ (Ind. 2008)]). “If part one, the requirement of a
                legitimate and good faith reason, posed an inordinately high bar
                for a relocating parent to meet, it could too often prevent trial
                courts from reaching part two and appropriately deciding the
                dispute based on the best interests of the affected child.” Id.


       H.H., 3 N.E.3d at 35 (emphasis added).


[10]   Here, neither party requested, and the trial court was not required to enter,

       findings and conclusions. R.A.P. v. C.D.T. (In re J.T.), 988 N.E.2d 398, 400




       indicative of a parent’s “insidious intent”), trans. denied. As the trial court noted, Father likewise did not file
       an intent to relocate when he moved to Bunker Hill in February 2017.

       Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018                             Page 6 of 9
       (Ind. Ct. App. 2013). Still, at the conclusion of the evidentiary hearing, the trial

       court issued its ruling denying Father’s motion to modify custody in open court

       and made remarks about the best interests of the Children. While the trial court

       did not explicitly state that Mother had a burden to prove that her move was

       made in good faith and for a legitimate reason, we read the court’s comments as

       entirely consistent with our analysis in H.H. set out above. We reject Father’s

       contention on this issue.


[11]   Moreover, where a trial court does not make findings and conclusions, we

       simply review the record to determine whether there is sufficient evidence of

       each relevant factor to support the trial court’s decision. See Harpenau v.

       Harpenau (In re Harpenau), 17 N.E.3d 342, 347 (Ind. Ct. App. 2014). Here,

       Mother testified that she moved to Flora to live with her boyfriend and because

       her eldest daughter, R., was having anxiety issues and needed to go to a

       different school. That evidence is sufficient to satisfy Mother’s burden of proof

       to show that her move was in good faith and for legitimate reasons. See, e.g.,

       H.H., 3 N.E.3d at 36 (holding trial court erred when it found Mother’s proposed

       relocation for purpose of living with Husband, who had already moved, was

       not made in good faith or for legitimate purpose).


[12]   Father also contends that he satisfied his burden to prove that a modification of

       custody is in the Children’s best interests. Father correctly points out that,

       assuming Mother satisfied her burden to show that her relocation was in good

       faith and for a legitimate purpose, the burden then shifted to him to show that

       the proposed relocation is not in the best interests of the Children. I.C. § 31-17-

       Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018   Page 7 of 9
2.2-5(d). And Father maintains that he presented evidence on each factor set

out in Indiana Code Section 37-17-2.2-1(b) to support modification of custody.

But Father’s contention on this issue is nothing more than a request that we

reweigh the evidence, which we cannot do. The trial court heard relevant

evidence on each statutory factor as follows:


        a. The distance involved. Father testified that, since Mother had
        moved with the Children to Flora, he had not provided
        transportation to exercise his parenting time because it was “too
        far.” Tr. at 47. But Father also acknowledged that he is “willing
        and able” to transport the Children from Flora to exercise his
        parenting time. Id. at 36. Mother presented evidence that her
        new home in Flora is only forty minutes away from Father’s
        home in Bunker Hill. Thus, the distance between the homes is
        relatively insignificant.

        b. The feasibility of preserving the relationship between Father
        and the Children. Again, Father testified that he is “willing and
        able” to transport the Children from Flora to exercise his
        parenting time. Id. Accordingly, the evidence on this factor
        supports the trial court’s denial of Father’s motion to modify
        custody.

        c. Pattern of Conduct by Relocating Parent. As for the existence
        of a pattern of conduct by Mother, including actions to promote
        or thwart Father’s contact with the Children, Father testified that
        Mother has denied his requests for extra parenting time while
        Mother is working and the Children are out of school. However,
        Father also testified that he and Mother have attended therapy
        together in an effort “to better [their] communications[.]” Id. at
        29. And the trial court noted that Father and Mother had
        worked well together over the years to “put[ the C]hildren
        first[.]” Id. at 87. The evidence supports a determination that


Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018   Page 8 of 9
                there is no pattern of conduct by Mother to thwart Father’s
                parenting time.

                d. Reasons for Seeking or Opposing Relocation. Again, Mother
                testified that she and the Children moved to Flora so that Mother
                could be with her boyfriend and because her eldest daughter, R.,
                was having anxiety issues related to the Maconaquah school
                district. That evidence is sufficient to prove that Mother’s
                relocation was in good faith and for a legitimate purpose.

                e. Other factors. Father maintains that a modification of
                custody is in the Children’s best interests because “from his
                household the [C]hildren can better be given an open access to
                both parents and . . . he is home every day when the [C]hildren
                get off the bus.” Appellant’s Br. at 12. But Mother testified that
                she only works two days per week some weeks, and other weeks
                she has Wednesdays and Thursdays off of work. And in
                assessing the best interests of the Children, the trial court stated
                that it felt that Mother has been an “anchor” for the Children,
                which helped them stay “resilien[t]” throughout the dissolution
                proceedings. Id. at 92.


       We cannot say that the trial court abused its discretion when it concluded that

       denying Father’s motion to modify custody was in the Children’s best interests. 3


[13]   Affirmed.


       Robb, J., and Altice, J., concur.




       3
          To the extent Father contends that the trial court’s statements at the conclusion of the hearing indicate that
       it did not consider all of the relevant statutory factors, again, the court did not enter findings and conclusions.
       Accordingly, we look to the sufficiency of the evidence to support each factor. In re Harpenau, 17 N.E.3d at
       347.

       Court of Appeals of Indiana | Memorandum Decision 17A-JP-3011 | May 21, 2018                           Page 9 of 9
