      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                              May 12 2015, 10:34 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Trisha S. Dudlo                                          David A. Guerrettaz
      Kelly A. Lonnberg                                        Molly E. Briles
      Bamberger, Foreman, Oswald and                           Mary Lee Schiff
      Hahn, LLP                                                Ziemer Stayman Weitzel &
      Evansville, Indiana                                      Shoulders, LLP
                                                               Evansville, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Marriage of                         May 12, 2015
                                                               Court of Appeals Case No.
      Christina Estes (Sapp),                                  87A05-1408-DR-384
      Appellant-Respondent,                                    Appeal from the
                                                               Warrick Circuit Court
              v.
                                                               The Honorable David O. Kelley,
                                                               Judge
      Shaun Allen Sapp,                                        Cause No. 87C01-1302-DR-269
      Appellee-Petitioner.




      Kirsch, Judge.

[1]   In this post-dissolution matter, Christina Estes (“Mother”) sought to relocate

      with the parties’ minor child, K.S. Shaun Allen Sapp (“Father”) filed a motion

      to modify custody and prevent the relocation. After a two-day evidentiary

      Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015         Page 1 of 28
      hearing, the trial court ruled in Father’s favor. Mother appeals, raising the

      following restated and consolidated issues:

              I. Whether the trial court erred in excluding certain counseling records
              that Mother tendered at the hearing;
              II. Whether the trial court’s findings of fact and conclusions, denying
              Mother’s request to relocate with K.S. and granting Father’s petition to
              modify custody, were clearly erroneous; and
              III. Whether the trial court abused its discretion when it calculated
              child support.
[2]   We affirm.


                                 Facts and Procedural History
[3]   Mother and Father married in 2003. K.S. (“Child”), born in 2004, is their only

      child. Mother and Father separated in or around the fall of 2012, and on May

      8, 2013, their marriage was dissolved pursuant to a decree of dissolution and

      settlement agreement. Under the terms of the settlement agreement, the parties

      shared joint legal custody of Child, and Mother was awarded primary physical

      custody of her, with Father having visitation “Thursday and Friday overnight

      and every other weekend.” Appellant’s App. at A048. Father agreed to pay child

      support to Mother in the amount of $288.46 per week.


[4]   When Child was approximately four years old, the parties moved into a home

      (“family residence”) in Newburgh, Indiana, near Evansville, and, for the most

      part, Child has lived in the family residence continuously since that time, living

      with one parent or the other at that location after the separation and

      dissolution. Child has friends in the neighborhood, some of whom have spent


      Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 2 of 28
      the night at the family residence. Child excels academically at her school and is

      involved with extra-curricular activities, such as basketball associated with her

      school and tumbling classes in Newburgh. Child’s extended family, on both

      Mother’s and Father’s side of the family, live in the Newburgh and southern

      Indiana area, and Child spends time with these relatives on birthdays, holidays,

      and other occasions. Child’s maternal grandmother, Marilyn O’Neal

      (“O’Neal”), lives in Evansville. O’Neal and Child enjoy a close and bonded

      relationship and see each other frequently. O’Neal retired at age fifty-five to be

      available to take care of Child as needed, and, generally, she has been Child’s

      primary caretaker on those occasions when Mother and Father are not

      available.


[5]   Father works in Evansville and is an independent contractor with FedEx

      Ground. He owns two companies, S.C. Sapp, Inc. and Sapp, Inc., and a

      limited liability company, Sapp Diesel, LLC. The two corporations own and

      operate twenty-three FedEx trucks and nineteen routes, employing more than

      twenty individuals as staff, mechanics, and drivers; the limited liability

      company is a real estate holding company and does not generate income. As a

      business owner, Father has flexibility in managing his work schedule.

      Generally, he works from 6:30 or 7:00 a.m. to 10:30 a.m. each day at the FedEx

      terminal and then is on call, in order to handle issues that may arise with

      having employees and trucks making deliveries. In addition to working at the

      terminal, Father works six to eight hours per week from his home office on

      bookkeeping matters. In March 2011, Mother began working as an


      Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 3 of 28
      independent contractor for State Farm Insurance Company, owning and

      operating her own agency in Henderson, Kentucky.1 By all accounts, Mother

      enjoyed remarkable success in this position and was awarded national honors

      and awards for her achievements as an agent. Under the terms of the

      settlement agreement, Father received sole ownership of his three businesses,

      and Mother received sole ownership of her insurance agency business.


[6]   Because of Mother’s work schedule, and by agreement of the parties, Father

      spent additional parenting time with Child beyond that outlined in the

      settlement agreement. In or around January 2013, prior to the divorce being

      final in May 2013, Father moved out of the family residence and into a home

      that he rented from a family friend, Daniel Chancellor (“Chancellor”). On

      most school days, Father would meet Child as she got off the school bus, and

      he would keep her at his residence until Mother got home from work about

      6:00 p.m. If it was Mother’s overnight, she would pick up Child from Father;

      otherwise, Child would stay overnight with Father. During the summer

      months, O’Neal would watch Child during the daytime hours, and Father

      would pick her up between 3:00 and 4:00 p.m. to be with him until Mother

      picked up Child around 6:00 p.m.


[7]   In July 2013, Mother married Garrett Estes (“Garrett”). Garrett owns and

      operates two State Farm insurance agencies in the Cleveland, Ohio area.



      1
        Prior to beginning as an agent with State Farm, Mother worked for McDonald’s as a General Manager of a
      location, starting with McDonald’s at age sixteen and working her way up to the management position.

      Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015           Page 4 of 28
      Garrett has one son, H., who is the same age as Child. Child has a good

      relationship with both Garrett and H. Father has not remarried, but has been in

      a continuous relationship with Lauren Plunkett (“Lauren”) since prior to the

      dissolution. Lauren has two minor sons, J. and L., who are a little younger

      than Child. Lauren and her sons live with Father in the family residence.

      Child has a good relationship with Lauren and her sons.


[8]   Between July and September 2013, Mother began communicating with her

      State Farm Sales Leader Tommy Rowland (“Rowland”), who served as a

      liaison between individual agents and the State Farm corporate body, about the

      possibility of moving from her agency in Henderson, Kentucky to an agency in

      northern Ohio. State Farm’s term for the relocation process is “migration.” See

      Appellant’s App. at A080. Mother first conversed with Rowland by phone, and,

      at some point in the fall of 2013, she submitted an email request to Rowland

      formally indicating her desire to migrate. The migration process works as

      follows: An agent submits a request to migrate, and State Farm determines if

      there is an agency open in the agent’s requested geographic region, whether due

      to an existing agent’s retirement or the opening of a new agency. If there is

      more than one agency available, State Farm presents one of the openings to the

      agent, and he or she must accept or reject the offer. The agent cannot say,

      “‘Well, that one is too small’ or ‘I don’t like the location of it.’ You either take

      it or you don’t[.]” Id. at A102. If the agent accepts, he or she must move to the

      new agency location. If he or she rejects it, the migration process ends as to the

      pending request to migrate. An agent may, however, subsequently submit


      Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 5 of 28
       migration request to begin the process again. Mother learned in September or

       October 2013 about a State Farm agency in North Ridgeville, Ohio, located just

       outside of Cleveland, which was becoming available due to the agent’s

       retirement.


[9]    In November 2013, Mother filed with the trial court a Notice of Intent to

       Relocate Residence, stating, in part:

               5. The moving parent’s move is expected to take place on or about
               December 31, 2013. The Mother has remarried and her current
               husband’s job and her job are now located near Avon, Ohio.
               6. The relocation is being made for financial, budgetary, and
               economic reasons, and is in the best interest of the party’s minor
               children, and is being made due to the legitimate needs of the parties.
       Id. at A002. In December 2013, Mother moved her possessions out of the

       family residence and for the most part moved into Garrett’s home in Ohio, and

       Father moved back into the family residence. For those times that Mother was

       in Indiana after she moved out of the family residence, she stayed at her

       mother’s home in Evansville. On December 30, 2013, Father filed a petition to

       modify custody of Child, stating that Mother’s proposal to relocate with Child

       to Avon, which is near Cleveland and is approximately 450 miles from

       Newburgh, Indiana, was not in Child’s best interest.


[10]   Although Mother was residing, at least in part, in Ohio, she continued to

       operate her Henderson, Kentucky agency until mid-2014. In May 2014, she

       signed a contract to assume ownership and operation of an existing State Farm




       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 6 of 28
       agency in North Ridgeville, Ohio; Mother ceased to operate the Henderson,

       Kentucky office on June 1, 2014.


[11]   A few weeks later, on June 26 and 30, 2014, the trial court held a hearing on

       pending matters, namely Mother’s request to relocate and Father’s request for

       change of custody. At the hearing, Mother and Father testified, along with:

       Rowland; O’Neal; Roy Sapp, the paternal grandfather; and Tina Sapp, Father’s

       sister. The trial court also heard testimony from Chancellor, whose home

       Father rented for a year, Karen Gingerich, who cleaned house for both Mother

       and Father for a number of years, and Lisa Provost (“Provost”), a licensed

       counselor located in Evansville, who saw Child on six occasions, following

       reports received by Father and Mother from school related to isolated and

       minor behavioral issues.


[12]   Prior to the start of testimony, Mother advised the court that she intended to

       introduce certified medical records reflecting counseling sessions in which

       Father was involved, some joint marital sessions and other individual sessions,

       for the purpose of showing admissions Father made during those sessions. The

       trial court sustained Father’s objection, observing that the records predated the

       parties’ dissolution and, further, that Father had a right to cross-examine the

       individuals who made the entries in the records. Tr. Vol. 1 at 7-9. Later, during

       Father’s testimony, Mother again sought to introduce certain of the records,

       which the trial court again excluded on the basis of hearsay. Id. at 175, 178.




       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 7 of 28
[13]   During the hearing, Father explained that since he moved back into the family

       residence in December 2013, Mother spent most of her free time in Ohio with

       her husband, and to exercise her parenting time, sometimes Mother would fly

       Child back and forth between Indiana and Ohio, occasionally requiring Child

       to fly alone and connect flights through Detroit. The travel time to fly was

       approximately three hours, and to drive was approximately six and a half to

       seven hours. Father testified that, while Child remained a happy and well-

       adjusted Child after the dissolution, and that she continued to do well in school,

       the travel time impacted her ability to participate in weekend activities, such as

       basketball and tumbling. Mother testified that her current residence, as of June

       1, 2014, was in Avon, Ohio with Garrett and his son. Mother testified that

       while she moved out of the family residence in December 2013, she resided

       during the week at her mother’s home, in Evansville, Indiana, and did not

       officially move to Avon until June 1. Before Mother’s move to Ohio, she and

       Father both utilized maternal grandmother, O’Neal, to provide summer

       childcare for Child. After moving to Ohio, Mother hired a college student in

       the area to provide summer childcare for Child2 and Garrett’s son. Mother

       testified that because she and Garrett both had flexible work schedules, she did

       not anticipate regularly needing before-school or after-school care for Child in

       Ohio.




       2
        The hearing occurred in June 2014; for that summer, Child spent a portion of her summer break with
       Mother in Ohio and the remainder with Father in Indiana.

       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015           Page 8 of 28
[14]   With regard to Mother’s relocation to Ohio, Father testified that, since in or

       around October 2012 when Mother met and began dating Garrett, Father and

       Mother had been discussing the issue of whether she would want to relocate

       with Child to the Cleveland area, and Mother “assured [him] that it wasn’t

       going to happen” and that Garrett and his son planned to move to Indiana. Tr.

       Vol. 1 at 74. Father stated, “[S]he was kinda leading me along to believe that

       [Garrett and his son] were planning on moving down here.” Id. at 75.

       However, in June 2013, one month after the dissolution was final, and provided

       for Mother to have physical custody of Child, Father learned from Child that

       Mother and Garrett “had been pretty much planning to move to Cleveland at

       some point.” Id. Mother testified that she had always been “open and honest”

       with Father and that she never lied to him about needing to move. Tr. Vol. 2 at

       41. She explained that, after marrying Garrett, they were “doing the back and

       forth,” splitting time between cities, in an effort to run her Henderson agency

       and his two Ohio agencies. Id. at 43. To bring the family together, she began

       inquiring with Rowland about options to migrate one place or the other.


[15]   Father testified to his opposition to Mother’s request to relocate Child to Ohio,

       expressing concern about the detrimental effect that the move would have on

       his extended parenting time with Child, with whom he maintained a

       particularly close relationship, as he saw her almost daily during the school

       year. He also testified to his concern that her relationships with extended

       family in the southern Indiana area would suffer, and she would lose touch

       with them, observing that Child has no family or friends in Ohio other than


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 9 of 28
       Mother, Garrett, and his son. Father also testified to the close relationship

       Child enjoyed with O’Neal, who was able to watch Child on those occasions

       when neither parent was available, and who lived just five minutes from the

       FedEx terminal. He also “strongly opposed” Mother’s plan to enroll Child in a

       parochial school in Ohio, as the parties had agreed not to impose any particular

       religion on Child and instead let her choose as she matured. Tr. Vol. 1 at 104.

       He also noted that, in Indiana, Child had the benefit of caretakers being family

       members, such as O’Neal or Lauren, whereas in Ohio Mother had hired a

       college student to care for Child and Garrett’s son as needed.


[16]   Mother testified that Child had met friends and neighbors at Mother’s Avon

       residence, and had a wonderful relationship both with Garrett and his son.

       Mother indicated that if the relocation was granted, Child would attend the

       same school that H. had attended for the last couple of years, which Mother

       indicated was an “exceptional” school. Tr. Vol. 2 at 61. Mother noted Child’s

       ability to adapt well, based on prior events, and she was showing that same

       adaptability with regard to moving to Ohio. Mother explained she had a very

       flexible work schedule and planned to involve Child in extra-curricular

       activities in which she had expressed interest, such as basketball, tumbling, golf

       and tennis. Mother opposed Father having primary physical custody of Child,

       testifying, among other things, to her concern that Father has a sexual addiction

       and is in denial about it. Father admitted to maintaining an “open”

       relationship with Lauren, and Mother testified to her concern: “I don’t know

       what she will see. I don’t know what she will be exposed to.” Id. at 76. She


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 10 of 28
       explained that, as a part-time parent, Father still had the opportunity to engage

       in behaviors in his private time, meaning “an outlet” to do what he wanted

       when he was not with Child, but that if Child lived with Father on a full-time

       basis, he would not have the time or ability to go away on weekends to engage

       in that “lifestyle.” Id. at 76-77, 108. Mother also expressed her concern with

       Lauren living in the residence, given that she agrees to the lifestyle and engages

       in it. Upon cross-examination, Mother conceded that she was aware of the

       open/swingers lifestyle before the dissolution and participated in it on more

       than one occasion. In furtherance of her opposition to Father’s custody

       modification request, Mother testified to having concern about Father taking

       pain medications and testosterone, and she noted he did not always obtain his

       medications legally. Father reported to the court the medications he was

       currently taking and the diagnosed conditions associated with them.


[17]   Rowland testified that the reason Mother requested a migration to Ohio was

       “because she had remarried.” Appellant’s App. at A072. He confirmed that no

       one at State Farm asked Mother to migrate or suggested that she do so; it was

       her own idea and desire to do so. While Rowland was disappointed that

       Mother was leaving his market territory because she was “an amazingly

       successful agent” in Henderson, he had anticipated she would be requesting the

       migration because of her “new family situation,” and he supported and

       understood that decision. Id. at A079, A082. “I just knew that she had

       remarried and that’s where her husband was living, so I kind of anticipated

       something happening eventually.” Id. at A082. He further shared, that State


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 11 of 28
       Farm expects its agents to actively manage their agencies “and it’s very difficult

       to do that on a daily basis when you are living that far away from your agency.”

       Id. at A084. Rowland explained that, as of the time of the hearing, Mother’s

       Henderson agency had already been filled by a replacement agent, so if she

       wanted to come back, she would need to stay in Ohio as an active agent and

       begin the migration process again, which he characterized as “a waiting game,”

       since it may happen in a short time or it could take years. Id. at A088; A104

       (could be one month or ten years). Mother’s initial conversations with

       Rowland about migration included inquiries about the possibility of Garrett

       moving to Indiana, but Rowland did not have any direct conversations with

       Garrett about it as Garrett would need to contact State Farm’s Sales Leader in

       Garrett’s own area, and Rowland had no knowledge of whether that had

       occurred.


[18]   Provost testified that she saw Child on six occasions, after the parents had

       received reports from school regarding two instances that Child was observed

       engaging in a certain behavior, which affected only herself and did not involve

       other students. Provost testified that Child was a bright, articulate, well

       mannered, reserved girl, and was very cooperative as well. Provost never

       witnessed Child engage in the behavior that was previously observed by her

       teacher, and Provost felt the issue was resolved. Provost noted that both

       parents had a good relationship with Child and that “they’ve done [] an

       exceptional job” of leaving Child out of the issue concerning relocation. Tr.

       Vol. 2 at 10. When presented with hypothetical questions regarding her


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 12 of 28
       professional opinion whether someone who with a sexual addiction or an

       addiction to pornography should have custody, she replied, over Father’s

       objection, that it could put the child at risk of being exposed to sexuality and

       that a professional should be consulted to evaluate the person and determine if

       the addictions have been resolved. Provost confirmed that nothing during her

       counseling sessions with Child indicated that her behavior at school occurred

       because she had been exposed to something inappropriate.


[19]   With regard to income, the evidence revealed that Father receives a $40,000.00

       base salary from each of his two corporations, and, in addition, he is

       compensated by FedEx in a number of ways, including compensation based on

       number of packages delivered and the number picked up, the distance of the

       stops from the terminal, and good driving records. Father presented the parties’

       joint 2012 tax return, reflecting an adjusted gross income of $169,650.00,

       although according to an attached IRS worksheet, his individual adjusted gross

       income was $111,955.00, and the parties received a tax savings by filing jointly.

       Pet’r’s Ex. J. Father testified that he had requested and received extensions to

       file his 2013 returns, and thus, tax returns were not available as of the time of

       the 2014 hearing, but his 2013 W-2s from the two Sapp corporations reflected

       the same $40,000.00 salary as prior years. Father indicated that over the last

       five years his income had fluctuated from a high of around $200,000.00 to a low

       of $113,000.00, and that an annual income of $150,000.00 per year represented

       a fair estimation and considered annual fluctuations. Father introduced a

       proposed child support worksheet, reflecting an annual income of $150,000.00


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 13 of 28
       for himself and $130,000.00 for Mother, resulting in a weekly obligation of

       $107.21 from Mother to him if the trial court granted his request for change of

       custody of Child. Pet’r’s Ex. K.


[20]   With regard to Mother’s income, Rowland testified that State Farm

       compensates its agents on a commission basis, receiving commission on new

       business and on renewals, and they receive annual bonuses. In addition, the

       agents may earn rewards such as vacations and the like; the monetary value of

       the rewards are included in their gross income for tax purposes, so there is no

       need to add back those values when determining net income. Mother’s 2013

       tax return reflected an adjusted gross income of $130,232.00. By moving from

       her Henderson, Kentucky agency to an agency in North Ridgeville, Ohio,

       Mother testified that she anticipated her income would be lower in 2014, but

       was hopeful that it would be higher in 2015. Mother introduced four proposed

       child support worksheets, which considered variables in Father’s income and

       his visitation, and in all four cases had Mother’s income at $130.232.00. Two

       of the worksheets had Father at an income of $214,547.00, which Mother

       calculated by taking his approximately $40,000.00 annual salary and adding

       back to that Schedule E depreciation, expense deductions, and pension; one of

       those two worksheets assumed 98 overnights for Father and the other assumed

       120 overnights for Father. Resp’t’s Ex. 8 and 9. The other two proposed

       worksheets used $150,000.00 as Father’s annual income, again with one

       worksheet assuming 98 overnights for Father and the other assuming 120

       overnights. Resp’t’s Ex. 10 and 11. Mother requested that the trial court


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 14 of 28
       approve her request to relocate Child and adopt her proposed worksheet that

       had Father’s income at $214,547.00, her at $130,232.00, and assumed 120

       overnight visitations, resulting in a weekly child support obligation from Father

       to Mother of $262.26. Tr. Vol. 2 at 73; Resp’t’s Ex. 8.


[21]   At Father’s request, and after both parties had submitted proposed findings of

       fact and conclusions thereon, the trial court issued its Findings of Fact,

       Conclusions of Law, and Final Judgment, in which the trial court denied

       Mother’s request to relocate with Child and granted Father’s petition to modify

       physical custody of Child to him.3 The trial court ordered Mother to pay

       $107.21 in weekly child support to Father. Mother now appeals.


                                        Discussion and Decision

                                       I. Exclusion of Evidence
[22]   Mother claims that the trial court erred when, over Father’s objection, it did not

       allow into evidence counseling records and a summary of the records prepared

       by Mother’s counsel, all of which pertained to Father’s individual counseling

       and the parties’ marital counseling before the dissolution. Mother argues that

       such reports and summaries should have been admitted under Indiana

       Evidence Rule 803(6) and that it was reversible error to exclude the evidence.




       3
         The trial court entered sixty-six findings of fact and twenty-seven conclusions thereon, and the
       thoroughness of that order greatly facilitated our review of the issues. We also commend counsel for both
       parties on their briefing and advocacy in this appeal.

       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015             Page 15 of 28
[23]   Generally, the admission or exclusion of evidence is a determination entrusted

       to the discretion of the trial court. Apter v. Ross, 781 N.E.2d 744, 752 (Ind. Ct.

       App. 2003), trans. denied. We will reverse a trial court’s decision only for an

       abuse of discretion, that is, when the trial court’s decision is clearly erroneous

       and against the logic and effect of the facts and circumstances before the court.

       Id. Moreover, any error in the admission or exclusion of evidence must affect

       the substantial rights of a party before reversal is appropriate. Ind. Trial Rule

       61; Ind. Evidence Rule 103(a). For several reasons, we find no error with the

       trial court’s decision to exclude the evidence.


[24]   As the trial court observed, the tendered counseling records all predated the

       parties’ dissolution and settlement agreement, and, generally, evidence that pre-

       dates a dissolution decree is inadmissible in custody modification cases. Ind.

       Code § 31-17-2-21(c) (court shall not hear evidence on matter occurring before

       last custody proceeding between parties unless matter relates to best interest of

       child as described in Indiana Code section 31-17-2-8). Moreover, the record

       reflects that Mother did not make an offer of proof as required by Indiana

       Evidence Rule 103(a)(2), and by failing to make an offer of proof, Mother has

       waived her claim that the exclusion of the records constituted trial court error.

       Evid. R. 103(a)(2) (party may claim error in ruling to admit or exclude evidence

       only if error affects party’s substantial right and, if ruling excludes evidence,

       party informs the court its substance by offer of proof); Court View Centre, L.L.C.

       v. Witt, 753 N.E.2d 75, 85 (Ind. Ct. App. 2001) (failure to make offer of proof

       results in waiver of asserted evidentiary error).


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 16 of 28
[25]   Regardless of waiver and the pre-dissolution nature of the counseling records,

       the record before us indicates that the evidence Mother sought to present to the

       trier of fact through those records was otherwise admitted. According to

       Mother, she sought to admit the records primarily to introduce certain

       admissions and disclosures that Father made, particularly about aspects of his

       sex life. At trial, Mother cross-examined Father about having attended

       counseling, and she elicited from him admissions he made during those

       sessions, including his viewing of pornography and the possibility of having a

       sexual addiction. Tr. Vol. 1 at 172-75. Father also testified that he and Lauren

       have an “open,” rather than monogamous, relationship, and with her consent,

       he sometimes engages in other sexual relationships. In addition to Father’s

       testimony on the matter, Mother also testified that, during marriage counseling,

       Father admitted that he was addicted to pornography, he wanted her to

       embrace an “open” marital relationship and attend “swingers” clubs with him,

       and he might have a sexual addiction. Tr. Vol. 2 at 75-76. Thus, while the

       counseling records that Mother claimed would evidence those admissions were

       excluded, Father’s and Mother’s testimonies otherwise presented substantially

       the same information to the trial court.


[26]   An error is harmless if it does not affect the substantial rights of the parties.

       Spaulding v. Harris, 914 N.E.2d 820, 830 (Ind. Ct. App. 2009), trans. denied.

       Where wrongfully excluded testimony is merely cumulative of other evidence

       presented, its exclusion is harmless error. Id.; Ind. Ins. Co. v. Plummer Power

       Mower & Tool Rental, Inc., 590 N.E.2d 1085, 1088 (Ind. Ct. App. 1992) (error in


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 17 of 28
       exclusion of evidence is harmless when record discloses excluded evidence was

       otherwise presented to jury). We have held that, even if an evidentiary decision

       was an abuse of discretion, we will not reverse if the ruling constituted harmless

       error. Spaulding, 914 N.E.2d at 829-30. Here, where substantially the same

       information that Mother sought to present through the excluded records was

       admitted through witness testimony, we find that any error in the exclusion of

       the counseling records was harmless. Mother has failed to establish that the

       trial court’s decision to exclude the counseling records, and her counsel’s

       summary of them, was an abuse of discretion and affected her substantial

       rights.


             II. Denial of Relocation and Modification of Custody
[27]   Upon Father’s request, the trial court made specific findings of fact and

       conclusions of law in its order modifying custody and preventing Child’s

       relocation. We will not set aside the findings or judgment unless clearly

       erroneous, and due regard shall be given to the opportunity of the trial court to

       judge the credibility of the witnesses. Ind. Trial Rule 52(A); D.C. v. J.A.C., 977

       N.E.2d 951, 953 (Ind. 2012) (quotations omitted). Findings are clearly

       erroneous only when the record contains no facts to support them either

       directly or by inference. Id. A judgment is clearly erroneous when it is

       unsupported by the findings and the conclusions entered on those findings. In

       re Adoption of H.N.P.G., 878 N.E.2d 900, 904 (Ind. Ct. App. 2008), trans. denied.

       An appellate court neither reweighs the evidence nor reassesses witness



       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 18 of 28
       credibility, and it views evidence most favorably to the judgment. D.C., 977

       N.E.2d at 954.


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

       object by moving to modify custody or to prevent the child’s relocation. Ind.

       Code §§ 31-17-2.2-1(b), 31-17-2.2-5(a). When this objection is made, “[t]he

       relocating individual has the burden of proof 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).


[29]   A court must weigh the following factors in considering a proposed relocation,

       as set forth in Indiana Code section 31-17-2.2-1(b):

               (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.


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 19 of 28
[30]   D.C., 977 N.E.2d at 954. “Other factors affecting the best interest of the child,”

       referenced in subsection (b)(6), include, among other things: the child’s age and

       sex; the parents’ wishes; the child’s wishes, with the wishes of children fourteen

       years or older being given more weight; the child’s relationship with parents,

       siblings, and any other person affecting the child’s best interests; and the child’s

       adjustment to home, school, and the community. Ind. Code § 31-17-2-8; D.C.,

       977 N.E.2d at 954 (citing Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind.

       2008)).4 When one parent is relocating, it is not necessary for a court to find a

       substantial change in one of these “other factors” before modifying custody.

       D.C., 977 N.E.2d at 954.


[31]   In D.C., a mother sought to relocate to Tennessee with the child. The trial court

       found that while the mother met her initial burden of showing legitimate reason

       and good faith in relocating, the father established that it was not in the child’s

       best interest. Id. at 954-55. On appeal, a panel of this court determined that the

       trial court’s best-interest determination was clearly erroneous. Id. at 956.

       Reversing that decision, our Supreme Court took the opportunity to reaffirm

       “the importance of appellate deference in family law matters[,]” stating:

               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



       4
         Our Supreme Court has instructed, “by implication, the factors set forth for custody
       determinations and modifications require consideration when determining what other
       factors may affect the best interest of the child.” Baxendale v. Raich, 878 N.E.2d 1252,
       1257 (Ind. 2008).

       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 20 of 28
               extended period of time. Thus enabled to access 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.
[32]   Id. Our Supreme Court contrasted the trial court’s unique position to that of

       appellate courts, who “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.” Id. at 956-57

       (citing Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quotations omitted)).

       Therefore, “[o]n appeal it is not enough that the evidence might support some

       other conclusion, but it must positively require the conclusion contended for by

       appellant before there is a basis for reversal[.]” Id. at 957. Accordingly, we will

       not substitute our own judgment “if any evidence or legitimate inferences

       support the trial court’s judgment.” Id. As the D.C. Court recognized, “‘The

       concern for finality in custody matters reinforces this doctrine.’” Id. (quoting

       Baxendale, 878 N.E.2d at 1257-58).


[33]   Initially, we note that Mother’s brief states that she and Child “live in

       Evansville” and “are seeking to relocate to Avon, Ohio.” Appellant’s Br. at 3.

       However, according to Father and the record before us, Mother had already

       relocated, at the latest on June 1, 2014, and perhaps as early as December 2013,

       when she moved her belongings out of the family residence. She contracted for

       the new agency in May 2014, and began officially operating it in June 2014.

       We recognize, as did the trial court, that due to the retirement of another agent,

       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 21 of 28
       Mother was provided with the opportunity to relocate to an existing office in

       North Ridgeville, Ohio, and assume an existing book of business. In addition,

       she was promoted from a temporary contract with State Farm to a permanent

       one, which ensured stability for her. We do not judge Mother’s decision to

       migrate to an agency in northern Ohio, where her husband lives and operates

       two successful State Farm agencies. Our task is to determine whether the trial

       court’s decision to deny her request to relocate Child and modify custody to

       Father was clearly erroneous.


[34]   Here, the trial court determined that Mother, as the party seeking to relocate,

       did not satisfy her burden of establishing that her relocation was made for a

       legitimate purpose or in good faith. Appellant’s App. at A023. In her November

       2013 relocation Notice, Mother stated that “her job [was] now located near

       Avon, Ohio.” Id. at A001-003. However, as the trial court recognized in its

       findings, when Mother made that statement in the Notice, her job was not in

       Ohio as stated, but rather was still in Henderson, Kentucky, through June 2014.

       Further, the trial court in Finding No. 17 observed:

               Although the Court has not yet ruled on whether to grant the
               relocation of the minor daughter with the Mother to northern Ohio,
               the Mother nevertheless agreed to and fully committed herself to the
               new agency in North Ridgeville, Ohio.
[35]   Id. at A010. The trial court’s conclusions likewise indicated that in the trial

       court’s view Mother had unilaterally sought and completed relocation prior to

       the trial court’s ruling on her request to relocate Child. Its conclusions

       included:


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 22 of 28
               72. Mother testified that one of her primary reasons for relocating is
               her employment, as she is now employed with a State Farm agency in
               North Ridgeville. However, the Court weighs this fact against Mother
               because she unnecessarily changed her employment after notifying
               Father of her intent to relocate. Mother testified that State Farm did
               not require her to migrate. She initiated the inquiry into migrating,
               and she ultimately made the choice to leave her Henderson office of
               her own volition. To some extent, it seems that Mother attempted to
               create another reason to support her relocation request by taking a new
               job. Parents cannot unilaterally create circumstances that bolster their
               request to relocate their minor child. Moreover, Mother was gainfully
               employed and enjoying notable success at her Henderson office.
               There was no evidence to suggest that her success at the branch would
               not continue. Furthermore, Mother did not migrate to the North
               Ridgeville office in hopes of earning a larger salary. In fact, Mother
               testified that she expected her income to decrease, at least temporarily,
               after migrating because she will have to create a new “book of
               business.”
               73. Mother also testified that she moved to Avon because she wanted
               to be with her husband, Mr. Estes, who is employed with State Farm
               in the Avon area. However, having Mr. Estes migrate to an agency in
               or around Newburgh was a viable option. Additionally, Mr. Estes
               could have moved to Newburgh and attempted to work at his Ohio
               offices remotely. The Court is not convinced that Mother and Mr.
               Estes adequately explored these possibilities.
               74. For these reasons, Mother has not satisfied her burden of showing
               that her proposed relocation of the minor child is made in good faith
               and for a legitimate purpose.
       Id. at A022-023. The trial court thereafter reviewed and reached conclusions on

       statutory factors related to the best interest of the child, id. at A025-A030, and

       determined that it was not in Child’s best interest to relocate to Ohio. Id. at

       A030.


[36]   Mother argues that she met the statutory burden to establish the good faith and

       legitimacy requirements of Indiana Code section 31-17-2.2-5(c), given that

       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 23 of 28
relocating to Ohio to run her own agency, already established with a set of

business and under a permanent State Farm contract, will strengthen her

family’s financial situation, including Child’s and, in addition, will unite

Mother with her husband. In H.H. v. A.A., 3 N.E.3d 30, 35 (Ind. Ct. App.

2014), our colleagues observed that “case law has not explicitly set forth the

meaning of legitimate and good faith reasons in the relocation context.” The

H.H. court recognized, however, that “‘it is common in our society that people

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

maintain employment,’” and it adopted the reasoning that “these and similar

reasons are what the legislature intended in requiring that relocation be for

‘legitimate’ and ‘good faith’ reasons.” Id. (quoting T.L. v. J.L., 950 N.E.2d 779,

787-88 (Ind. Ct. App. 2011). Assuming without deciding that Mother is correct

that the trial court erred when it determined that she did not meet the legitimate

reason and good faith requirements of the statute, we must still determine

whether the trial court erred when it determined that Father met his burden of

establishing that it was not in Child’s best interest to relocate to Ohio. See H.H.,

3 N.E.3d at 35 (resolution of relocation disputes ultimately turns on judicial

determination of best interest of child); T.L., 950 N.E.2d at 788 (same). To

make its determination, the trial court in this case needed to consider, among

other things, the child’s age and sex; the parents’ wishes; the child’s wishes,

with the wishes of children fourteen years or older being given more weight; the

child’s relationship with parents, siblings, and any other person affecting the

child’s best interests; and the child’s adjustment to home, school, and the

community. Ind. Code §§ 31-17-2.2-5(d), 31-17-2-8.
Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 24 of 28
[37]   Here, the trial court conducted a two-day evidentiary hearing and heard the

       testimony of nine witnesses. The trial court heard the testimony that Child

       attends, and excels, at her elementary school, participates in local extra-

       curricular activities and sports both in and out of school, has a stable home life,

       and has formed friendships with friends and neighbors. All of her extended

       family, on both sides of the family, live in the southern Indiana area. She and

       O’Neal have a close and bonded relationship, with O’Neal often providing any

       needed childcare. Child enjoys periodic social outings with Father’s sister, and

       she celebrates holidays and birthdays with grandparents and other extended

       family. Father testified to his concern that those relationships will deteriorate if

       Child were relocated to Ohio. Father testified to exercising regular, many times

       daily, visitation with Child. Witnesses testified that both Mother and Father

       were good parents and had a loving and appropriate relationship with Child.


[38]   In her appeal, Mother argues that the trial court failed to consider aspects of

       Father’s sex life and how they could impact Child if she were in his care full-

       time and about his medication habits. Mother also notes that, if the relocation

       were granted, Father testified that he would have the ability to exercise 98 to

       120 overnights per year and that he acknowledged the ability to purchase

       another home in the Avon, Ohio area so that he could exercise at least one

       weekend per month with Child. The trial court heard, evaluated, and

       considered all of these matters. The trial court was skeptical of Mother’s

       concerns regarding Father’s private sex life, and it found that none of the

       medical conditions or prescriptions have been shown to affect Father’s care for


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 25 of 28
       Child. Appellant’s App. at A018-19. Mother is asking us to reweigh the evidence

       which we cannot do. In re Marriage of Harpenau, 17 N.E.3d 342, 348 (Ind. Ct.

       App. 2014).


[39]   The trial court’s findings and conclusions indicate that it was troubled that

       Mother decided to accept and begin new employment regardless of the fact that

       no hearing had yet been held, as “[I]t signals to the Court that Mother has

       placed her own interests ahead of [Child’s].” Appellant’s App. at A029. The trial

       court heard the testimony and examined the evidence, ultimately finding that a

       relocation to Ohio would be contrary to Child’s best interest and that a change

       of custody was warranted. “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.” Harpenau, 17 N.E.3d at 348. Based on the

       record before us, and consistent with the applicable clear-error standard of

       review, we cannot say that there were no facts, either directly or by inference, to

       support the trial court’s decision.


                                          III. Child Support
[40]   Having found that the trial court’s decision to deny relocation and modify

       primary physical custody was not clearly erroneous, we turn to Mother’s claim

       that the trial court abused its discretion when it ordered Mother to pay Father

       child support in the amount of $107.21 per week. In reviewing a trial court’s

       modification of child support, we reverse only for an abuse of discretion. Id. at

       349. An abuse of discretion occurs when the decision is against the logic and


       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 26 of 28
       effect of the facts and circumstances before the court, including any reasonable

       inferences. Id.


[41]   Mother contends that the trial court abused its discretion when in calculating

       child support it used an annual income figure of $150,000.00. She proposed

       that the trial court utilize an annual income for Father of $214,547.00, arguing,

       “The Father’s income should be calculated by considering his expense

       deduction, his depreciation, and his investment tax credits.” Appellant’s Br. at

       31. Mother provides no support, however, for the proposition that the trial

       court was required to add to Father’s salary depreciation, expense deduction,

       and pension. In fact, she reminds us that “the trial court is vested with

       discretion regarding the validity of business expenses and deductions taken for

       tax purposes by a business owner.” Id. at 30 (quoting Bass v. Bass, 779 N.E.2d

       582, 593 (Ind. Ct. App. 2002), trans. denied). Mother also asserts that child

       support was computed improperly, and warrants remand for recalculation,

       because the trial court employed 2013 income figures for Mother and 2012

       income figures for Father, placing Mother “in a detrimental position” by using

       a higher figure for her and a lower figure for Father. Appellant’s Br. at 32.

       Based on the record before us, Mother has not established that she was placed

       in a detrimental position, or that the trial court abused its discretion, when it

       calculated child support.


[42]   Here, the trial court received testimony from Father regarding his income, as

       well as documentary evidence, including W-2s, K-1s, tax returns, and 1099s for

       several years. The trial court recognized that both parties are self-employed

       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015   Page 27 of 28
       independent contractors, whose income fluctuates and is dependent on

       variables and that, consequently, there is difficulty in calculating income for

       self-employed individuals. Appellant’s App. at A020. Taking into consideration

       the evidence before it, the trial determined that Father’s proposed child support

       worksheet was “reliable” and represented an accurate assessment of the parties’

       incomes for purposes of determining child support. Id. The trial court

       calculated child support based on annual incomes of $150,000.00 for Father

       and $130,000.00 for Mother. The record before us reveals that there was

       evidence to support this decision. Mother has failed to establish that the trial

       court abused its discretion in its child support calculation.5


[43]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       5
         We also note, and as Father reminds us, Mother submitted at trial proposed alternate child support
       obligation worksheets that identified Father’s annual income at $150,000.00, which is the annual income
       figure ultimately employed by the trial court. Resp’t’s Ex. 10 and 11. We recognize that Mother requested the
       trial court to adopt a different proposed worksheet, but she nevertheless offered and the trial court admitted
       into evidence two worksheets with Father’s income at $150.000.00. To some extent, then, she invited the
       trial court to utilize this income figure, which, even if it does not rise to the level of waiver, at a minimum
       supports our determination that the trial court did not abuse its discretion.

       Court of Appeals of Indiana | Memorandum Decision 87A05-1408-DR-384 | May 12, 2015               Page 28 of 28
