      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    Feb 27 2015, 9:27 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.



      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Amy K. Noe                                                Andrew J. Sickmann
      Richmond, Indiana                                         Boston Bever Klinge Cross & Chidester
                                                                Richmond, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In re The Support of                                      February 27, 2015
      J.B.W. and M.A.W.                                         Court of Appeals Case No.
                                                                89A01-1409-JP-403
      A.A.W.,
                                                                Appeal from the Wayne Circuit
      Appellant-Father,                                         Court
                                                                The Honorable David A. Kolger,
              v.                                                Judge
                                                                Cause No. 89C01-0410-JP-063
      A.D.P.,
      Appellee-Mother



      Mathias, Judge.


[1]   A.A.W. (“Father”) appeals the Wayne Circuit Court’s order granting A.D.P.

      (“Mother”) permission to relocate the parties’ two minor children, J.B.W. and

      M.A.W., to New York. Father argues that the trial court clearly erred when it



      Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 1 of 12
      found that Father did not meet his burden of proving that the relocation was

      not in the best interests of the children.

[2]   We affirm.


                                  Facts and Procedural History

[3]   This is the second appeal addressing Mother’s notice of intent to relocate J.W.

      from Richmond, Indiana to Levittown, New York.1 Relevant facts recited in

      the prior appeal are as follows:


              J.W. was born to Mother on September 21, 2004. On June 10, 2005,
              the trial court entered an order establishing Father’s paternity. The trial
              court awarded Mother custody of J.W., and Father was granted
              parenting time and ordered to pay child support. Mother, J.W., and
              Father all resided in Richmond, Indiana. In January 2007, Mother
              filed a notice of intent to relocate from Richmond to Florida. Father
              consented to the relocation and, following a hearing, the trial court
              entered an order granting Mother’s request to relocate. Apparently,
              however, Mother decided not [to] move to Florida and remained in
              Indiana.
              In 2008, Father was twice found in contempt of court for failure to pay
              child support. Thereafter, in September 2009, Mother filed a notice of
              intent to relocate to Indianapolis. Mother failed to properly serve
              Father with notice as required. Mother filed another notice of intent to
              relocate to Indianapolis in February 2010, but again failed to properly
              serve Father with notice as required. During this time, Father was
              twice found in contempt of court for failure to pay child support.
              Despite her failure to properly serve Father with notice of her intent to
              relocate to Indianapolis, Mother did move with J.W. to Indianapolis
              in 2010 and attended the International Business College Dental



      1
        Father’s paternity to M.W., who was born on August 27, 2012, was established in a separate paternity
      proceedings under cause number 89C01-1309-JP-131. Mother later filed a separate notice of intent to
      relocate M.W.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015        Page 2 of 12
               Assistant Program. In response to her move, Father filed a petition for
               contempt against Mother. Mother was found in contempt and ordered
               to comply with the Indiana Parenting Time Guidelines as they
               pertained to transportation of J.W. for parenting time access purposes.
               Following a review hearing, the trial court determined that Mother
               had complied with the court’s compliance order and dismissed the
               contempt citation. Soon thereafter, Father received his fifth and sixth
               contempt citations for failure to pay child support. In 2011, Mother
               returned to Richmond with J.W. after completing her degree.
               On June 14, 2013, Mother filed a notice of intent to relocate to New
               York and properly served Father with such notice. In the notice,
               Mother stated that she had been offered gainful employment as a
               dental assistant in the New York area, that the wages for such
               employment far exceeded her current wages, that she has multiple
               family members in and near the community where she intends to
               move, and that she had verified the elementary school that J.W. would
               attend. Although Father did not file an objection to Mother’s proposed
               relocation, the trial court set the matter for an evidentiary hearing.
               Mother appeared with counsel, and Father appeared pro se. After the
               hearing, the trial court entered its order denying Mother’s petition to
               relocate. Specifically, the trial court concluded that Mother did not
               meet her burden to prove that her relocation request was made in good
               faith and for a legitimate purpose. The trial court did not make a
               determination regarding whether the proposed relocation was in
               J.W.’s best interest.

      In re Paternity of J.W., 13 N.E.3d 551, Slip op. at 1-2 (Ind. Ct. App. May 20,

      2014).


[4]   On appeal, our court concluded that “the familial and financial reasons cited by

      Mother and supported by the evidence are more than sufficient to satisfy her

      burden to prove that her relocation request was made in good faith and for a

      legitimate reason, and the trial court's conclusion to the contrary is clearly

      erroneous.” Slip op. at 5. We observed that because Mother met her burden of

      proof under the relocation, the burden shifted to Father to prove that the

      Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 3 of 12
      proposed relocation was not in J.W.’s best interest. However, the trial court

      “heard very little evidence and made no conclusion regarding J.W.’s best

      interest”; therefore, we remanded the case to the trial court for further

      proceedings. Slip op. at 6.

[5]   Thereafter, the trial court held a hearing on August 6, 2014. A week prior to the

      August 6 hearing, the trial court consolidated Mother’s notice of intent to

      relocate J.W. with her notice of intent to relocate M.W.


[6]   On September 9, 2014, the trial court issued an order granting Mother

      permission to relocate J.W. and M.W. to New York, and entered the following

      findings of fact:

              18. Mother presented evidence that showed that a job offer remained
              valid in New York, which would allow her to work as a dental
              assistant.
              19. Mother is currently employed by a restaurant in Richmond,
              Indiana, and earns far less than minimum-wage but does receive tip
              monies that vary on a weekly basis.
              20. Even when considering Mother’s wages from tips, Mother will
              often barely earn a living wage when considering her obligation to
              support her two children.
              21. Mother has searched for jobs in the Wayne County, Indiana, area
              that would increase her standard of living; however, has been
              unsuccessful in obtaining such employment. Indeed, Mother testified
              that she has submitted multiple applications to dental offices in the
              Wayne County, Indiana area and that were such employment
              available, she would accept the same.
              22. Mother testified that she lives at or below poverty level in
              Richmond, Indiana, and would very much like to change those
              circumstances for her children. As a result of the evidence presented at
              the Re-Hearing, this Court agrees with such an assessment when

      Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 4 of 12
        considering Mother’s earning power in Richmond, Indiana, and the
        financial obligations she is tasked with in raising her two (2) children.
        23. This Court would note that since the beginning of this Cause that
        Father has been held in contempt for failure to pay child support on at
        least six (6) separate occasions. It is significant that Father rarely
        satisfies his child support obligation on a consistent basis, which, in
        turn, creates an even greater financial burden for Mother in raising her
        two (2) children.
        24. Mother testified that if she were permitted to move her two (2)
        children to New York that Father’s access to the children would not be
        significantly altered. Mother indicated that Father’s parenting time
        with the children is sparse and intermittent. In fact, Mother submitted
        text messages from Father that show his unwillingness to provide
        assistance in providing care, financial or otherwise, for the parties’
        minor children.
        25. Father has repeatedly refused to assist Mother in watching the
        children when Mother is required to work, or to provide assistance in
        ascertaining a third (3rd) party to watch the children. Mother has
        shown this Court that Father often rejects his regularly scheduled
        access to the children and refuses to cooperate with Mother in finding
        suitable childcare in such instances. This requires Mother to
        repeatedly find childcare which she is nearly unable to afford when
        considering her present income.
        26. Mother testified extensively to the fact that she has family in New
        York that is ready and willing to provide the assistance that she does
        not receive in Richmond, Indiana. Further, Mother has shown this
        Court that the increase in her wages that she would experience in New
        York would permit her to provide an all-around better life for her
        children and hopefully lift them from poverty.
        27. Mother plans to live with her sister and brother-on-law in New
        York without being obligated to pay rent so that she may save money
        and eventually begin a solid financial life for her and her children. The
        evidence and testimony presented at the Re-Hearing show this Court
        that this goal is not presently possible for Mother should she remain in
        Richmond, Indiana.
        28. Father and his Mother, the children’s Grandmother, testified that
        each spends copious time with the children herein and that the
        children are bonded with Father. Father submits that it would not be
Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 5 of 12
        in the best interest of the children to move to New York because
        Mother could increase her wages in the Wayne County, Indiana, area
        and that the children have family in Richmond, Indiana. This,
        however, must be tempered against the fact that Mother has attempted
        to gain better employment in the Wayne County, Indiana, area and
        that the children also have family in New York.
        29. This Court has previously found that Father is bonded with the
        children and that his access with them is meaningful. The Court does
        not doubt that this remains true; however, Mother has since shown the
        Court that Father often chooses not to capitalize on these bonds and
        spend time with the children.
        30. This Court acknowledges that Father’s parenting time with the
        children will be effected should Mother move to New York; however,
        Father has failed to show this Court that his access to the children has
        been consistent over a significant period of time. Indeed, the evidence
        shows that Father often appears to argue with Mother for less time
        with the children.
        31. The distance between Indiana and New York is substantial;
        however, Mother’s proposal regarding Father’s access to the children
        is reasonable, if not liberal. Father testified that should Mother be
        permitted to move the parties’ children to New York that he would
        meet Mother half-way between Indiana and New York to exercise
        access with the children, which would require approximately five and
        one-half (5 1/2) hours of Father’s time to pick up the children. Mother
        and Father further agreed that Father should have regular contact with
        the children via Skype or some other medium by which Father could
        communicate with the children via video.
        32. Father’s current parenting time access equates to Father spending
        fifty-two (52) overnights with the children per year. Should Mother be
        permitted to move the children to New York, Father’s access pursuant
        to the Indiana Parenting Time Guidelines When Distance Is A Major
        Factor should provide Father with greater access; although this Court
        recognizes that such access would not be as consistent were the
        children to remain in Richmond, Indiana. Still, however, Mother has
        shown this Court that Father’s access to the children when they live in
        Richmond, Indiana cannot be described as consistent when
        considering Father’s propensity to cancel his regularly scheduled
        parenting time.

Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 6 of 12
              33. Father lives with his Mother in her home. This home does not
              have sufficient bedrooms for the children to live in on a full-time basis.
              Further, Mother has been the primary caregiver of the children for
              their entire lives. As a result, Mother will continue to be responsible
              for the care and custody of the minor children and she should be
              permitted to increase her standard of living to that of at least a basic
              level, which will better the lives of the parties’ children.
              34. Should Mother remain in Richmond, Indiana, with the children it
              is likely that Mother and the parties’ children will continue to live in
              poverty; and it is clear to the Court that Father does little to change
              those circumstances through the satisfaction of his child support
              obligation or otherwise.
              35. Mother should be permitted to lift herself and her children from
              her current circumstances by accepting employment in New York
              which will nearly triple her wages. Further Mother will receive the
              support from family in New York that she needs to build a better
              financial future for her children. It is clear to this Court that by
              moving the children to New York, the children’s lives will be greatly
              improved.

[7]   Appellant’s App. pp. 54-57. The court concluded that Father failed to meet his

      burden to show that the move was not in J.W.’s and M.W.’s best interests.

      Father now appeals. Additional facts will be provided as necessary.


                                         Standard of Review

[8]   At Father’s request, the trial court issued findings fact and conclusions thereon

      pursuant to Indiana Trial Rule 52. We therefore employ a two-tiered standard

      of review:

              [W]e must first determine whether the record supports the factual
              findings, and then whether the findings support the judgment. On
              appeal, we will not set aside the findings or judgment unless they are
              clearly erroneous, and due regard shall be given to the opportunity of
              the trial court to judge the credibility of witnesses. We therefore
              consider only the evidence favorable to the judgment and the
      Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 7 of 12
               reasonable inferences flowing therefrom, and we will neither reweigh
               the evidence nor assess witness credibility. A judgment is clearly
               erroneous when there is no evidence to support the findings, the
               findings do not support the judgment, or the trial court applies the
               wrong legal standard to properly found facts.

       T.L. v. J.L., 950 N.E.2d 779, 783 (Ind. Ct. App. 2011) (quoting M.S. v. C.S., 938

       N.E.2d 278, 281–82 (Ind. Ct. App. 2010)).

[9]    Moreover, our supreme court has expressed a ‘preference for granting latitude

       and deference to our trial judges in family law matters.” In re Marriage of

       Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). We afford such deference because

       the trial judge has “unique, direct interactions with the parties face-to-face.”

       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. Therefore, we “will not substitute our own judgment if

       any evidence or legitimate inferences support the trial court’s judgment. The

       concern for finality in custody matters reinforces this doctrine.” Baxendale v.

       Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008).


[10]   Mother filed her notice of intent to relocate pursuant to Indiana Code section

       31-17-2.2-1(a), which provides that “[a] relocating individual must file a notice

       of the intent to move with the clerk of the court that: (1) issued the custody

       order or parenting time order; or (2) . . . has jurisdiction over the legal

       proceedings concerning the custody of or parenting time with a child; and send


       Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 8 of 12
       a copy of the notice to any nonrelocating individual.” “The relocating

       individual has the burden of proof that the proposed relocation is made in good

       faith and for a legitimate reason.” I.C. § 31-17-2.2-5(c). If the relocating parent

       meets that burden, “the burden shifts to the nonrelocating parent to show that

       the proposed relocation is not in the best interest of the child.” I.C. § 31-17-2.2-

       5(d). See also T.L., 950 N.E.2d at 784.


[11]   In determining whether to permit a relocation, the trial court shall take into

       account the following:

               (1) The distance involved in the proposed change of residence.
               (2) The hardship and expense involved for the nonrelocating
               individual to exercise parenting time[.]
               (3) The feasibility of preserving the relationship between the
               nonrelocating individual and the child through suitable parenting time
               . . . 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.

       I.C. § 31-17-2.2-1(b). “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.” T.L., 950 N.E.2d at 785

       (citing Baxendale, 878 N.E.2d at 1257).

       Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 9 of 12
[12]   Father argues that he proved that allowing J.W. and M.W. to relocate to New

       York was not in the children’s best interests. Father cites to his own testimony

       and his mother’s to argue that he has been exercising regular parenting time

       with the children and that his relationship with the children will suffer if they

       relocate to New York. However, the trial court weighed this testimony against

       Mother’s testimony that Father has historically failed to exercise regular

       parenting time with the children. Mother also stated that Father only exercises

       regular parenting time with the children when the parties have scheduled court

       dates. Tr. p. 78. Father’s argument is simply a request to reweigh the evidence

       and the credibility of the witnesses, which we will not do. See T.L., 950 N.E.2d

       at 783.

[13]   Father also argues that the trial court’s finding that Mother’s wages and

       standard of living will increase beyond the poverty level if she moves to New

       York is not supported by the evidence. Mother testified that she will be living

       with her sister in New York and earning a wage of twenty-two dollars per hour

       working approximately forty hours per week. She and the children will reside

       with her sister rent-free, and family members are willing to provide child care at

       no cost. Mother’s current wages are less than half of that amount, her rent is

       $100 per week, and she pays for childcare.

[14]   Mother stated that she desires to save money to eventually obtain her own

       residence. Father correctly observes that when she does so, her disposable

       income will decrease. However, Mother’s speculative future plans do not negate



       Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 10 of 12
       the trial court’s finding that Mother’s present ability to support herself and her

       children with increase substantially if they move to New York.

[15]   Next, Father argues that the substantial distance between Richmond and

       Levittown, New York combined with his lack of financial resources will impair

       his ability to maintain his relationship with J.W. and M.W. However, we

       conclude that the following finding is supported by the evidence:

               Father’s current parenting time access equates to Father spending fifty-
               two (52) overnights with the children per year. Should Mother be
               permitted to move the children to New York, Father’s access pursuant
               to the Indiana Parenting Time Guidelines When Distance Is A Major
               Factor should provide Father with greater access; although this Court
               recognizes that such access would not be as consistent were the
               children to remain in Richmond, Indiana. Still, however, Mother has
               shown this Court that Father’s access to the children when they live in
               Richmond, Indiana cannot be described as consistent when
               considering Father’s propensity to cancel his regularly scheduled
               parenting time.

       Appellant’s App. p. 52. Father also stated that if Mother was allowed to

       relocate the children, he would purchase a computer so that he could Skype

       with them.


[16]   Father will incur expenses to facilitate his parenting time with his children, and

       he did prove that he has limited financial resources. However, Mother’s

       financial resources will remain limited if she continues to reside in Indiana.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015   Page 11 of 12
       Also, Father’s historical failure to consistently pay his child support has

       contributed to Mother’s own financial hardship.2

[17]   Mother desires to relocate to New York to provide a better life for herself and

       the children. In addition to a better job with a substantial increase in pay, she

       will have the assistance of family members that she does not have in Richmond,

       Indiana.3 The evidence established that Mother has requested assistance from

       Father that he is not willing to give. Although the distance between Richmond

       and Levittown is significant, and Father will experience hardship in facilitating

       his parenting time, the trial court’s finding that Father failed to prove that the

       proposed relocation is not in the best interest of the children is supported by the

       evidence. For all these reasons, we affirm the trial court’s order granting

       Mother’s permission to relocate the children to New York.


[18]   Affirmed.


       Najam, J.. and Bradford, J., concur.




       2
        Father’s child support obligation is $45 per week. The last contempt hearing for Father’s failure to pay child
       support was in September 2011 and his arrearage was $6102.72. Father is still paying on the arrearage.
       3
           Mother’s family members who live in Indiana are unable or unwilling to help her care for the children.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1409-JP-403 | February 27, 2015           Page 12 of 12
