MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                     Oct 01 2019, 6:17 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Bryan L. Ciyou                                           Jonathan R. Deenik
Ciyou & Dixon, P.C.                                      Deenik Lowe, LLC
Indianapolis, Indiana                                    Greenwood, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

S.A.W.,                                                  October 1, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-DR-1002
        v.                                               Appeal from the Henry Circuit
                                                         Court
K.L.W.,                                                  The Honorable Bob A. Witham,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         33C01-1510-DR-214



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019                   Page 1 of 15
                                          Case Summary
[1]   Scott Weaver (“Father”) appeals the trial court order, following an evidentiary

      hearing, granting Kelli L. Weaver’s (“Mother”) request to relocate with their

      child, L.W. (“Child”), and denying Father’s motion to modify child custody,

      parenting time, and child support. Father raises two issues which we

      consolidate and restate as whether the trial court clearly erred by granting

      Mother’s request to relocate with Child and denying Father’s motion to modify

      custody without sufficient evidence on all relevant statutory factors.


[2]   We affirm.



                            Facts and Procedural History
[3]   The parties were married on July 15, 2006, and Child was born on March 10,

      2011. On October 19, 2015, Father filed a petition for dissolution of marriage.

      The parties entered into a settlement agreement which was approved by the trial

      court and incorporated into a decree of dissolution on September 27, 2016.

      Under the agreed settlement, the parties shared joint legal custody of Child,

      Mother had physical custody of Child, and Father had parenting time as the

      parties agreed or no less than every Tuesday and Thursday evening for four

      hours and every other weekend. Both parties resided in Henry County,

      Indiana.


[4]   On March 12, 2018, Mother filed her notice of intent to move residence in

      which she gave notice to Father and the trial court that she intended to move

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 2 of 15
      with Child on or around June 2018 to Putnam or Clay County, Indiana. The

      notice stated “[t]he reason for the permanent relocation include[s] better job

      opportunities for myself and my fiancé.” App. Vol. II at 62. The notice further

      stated that Mother would “make every effort to keep up on the current

      parenting time but the distance and time in school may affect the parenting

      time.” Id. Mother further indicated she was “willing to go a minimum of half

      the distance of driving and meet at a prearranged location.” Id.


[5]   On May 4, 2018, Father filed his objection to Mother’s relocation with Child

      and a motion to modify custody, parenting time, and child support. Father also

      sought an order enjoining the parties from moving Child pending a decision of

      the court, and, on May 7, the court granted that motion and referred the matter

      to mediation.


[6]   On May 17, Mother filed an amended notice of intent to move residence in

      which she informed the Court that she would be relocating to an address in

      Cloverdale, Putnam County, on June 15, 2018. Mother stated the reasons for

      relocation were that “she is engaged, planning to get remarried, graduating

      from college[,] and has job opportunities [near the new location] that far exceed

      the opportunities that exist in the current area [where she lives].” Id. at 74.

      Mother also stated that “the minor child needs additional support in school

      which can better be supplied by the school district in which Mother plans to

      relocate.” Id. at 74-75. On May 18, Father filed his amended objection to

      relocation and motion to modify custody, parenting time, and child support.



      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 3 of 15
[7]   On June 13, 2018, the parties filed their “Agreed Entry Regarding [Mother’s]

      Temporary Relocation,” in which they agreed Mother could relocate herself

      and Child to an address in Knightstown, Henry County, in June of 2018, and

      Father’s parenting time would remain unchanged, “pending a full evidentiary

      hearing in this matter on her relocation.” Id. at 5, 81. The trial court approved

      the Agreed Entry on the same date.


[8]   On December 11, 2018, following an unsuccessful mediation, the trial court

      held an evidentiary hearing on the pending motions. At the hearing, Mother

      testified that she and Child still lived in Henry County, and Child still attended

      Tri Elementary, the Henry County school he had always attended. Mother

      testified she and Child spent the night at her fiancé’s house in Cloverdale every

      other weekend. However, Mother testified she wished to move with Child to

      Cloverdale in Putnam County because her fiancé lives there, her parents and

      siblings live close to there, and her and her fiancé’s job opportunities are better

      there. Specifically as to the latter reason, Mother testified that, since she had

      obtained her Bachelor’s degree in healthcare administration in May, she was

      now “eligible for a promotion as a practice manager or an executive director

      position” in her field “in the Cloverdale area.” Tr. at 7-8. Mother testified that

      the “promotion” position would pay “[c]lose to forty-five thousand dollars a

      year,” but she had been unable to find such a high paying similar position in the

      Henry County area. Id. at 8. Mother was applying for jobs near Cloverdale.

      Id. at 42, 44. Mother also testified that her fiancé was making ten dollars an




      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 4 of 15
       hour more at his job near Cloverdale than at the job he had previously held in

       Henry County.


[9]    Mother testified that Child’s Henry County school “labeled him as autistic”

       based on some behavioral issues, and Child has had an Individualized

       Education Plan (IEP) since he was in kindergarten. Id. at 16. Child’s IEP

       entitles him to “extra services” at school. Id. Mother testified that Central

       Elementary, the school Child would attend in Putnam County, is able to

       provide Child services pursuant to his IEP. Mother also admitted into

       evidence, without objection, documents from the Indiana Department of

       Education stating that Central Elementary school had a “grade” from the State

       of “B,” while Tri Elementary had a “grade” of “D.” Id. at 23-24; Ex. at 110-

       114.


[10]   Mother testified that Child does not have many friends at his school in Henry

       County, but he could have opportunities to regularly interact with his cousins—

       with whom he is “close”—if he lived in Cloverdale. Id. at 34. Mother also

       testified that if Child was living in Cloverdale, he would be closer to “Brain

       Balance,” a program that helps Child with “processing … what is going on.”

       Id. at 13. Mother testified that Child’s “emotional level” and behavior has

       improved since he has been attending sessions at Brain Balance, but that

       program is not located near Henry County. Id. at 19.


[11]   Mother testified that Cloverdale is one and a half hours’ drive from where

       Father lives in Henry County, and that she would be willing to meet Father half


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 5 of 15
       way in between their homes to facilitate Father’s weekend parenting times. She

       testified that she would be willing to take Child one way to Father in Henry

       County on his weekday parenting time. Father testified that the only basis for

       his request to modify custody was Mother’s relocation, but that he and Mother

       had worked well and flexibly together regarding parenting time in the past.

       Father further testified that he did not believe Mother, by relocating,

       “malicious[ly] inten[ded]” to minimize his parenting time with Child. Id. at

       122. We will provide additional facts as necessary.


[12]   On April 5, 2019, the court issued its order granting Mother’s request to

       relocate with Child at the conclusion of the 2018-19 school year and ordering

       that Mother continued to have primary physical custody and Father continued

       to have parenting time “as the parties can agree.” Id. at 8. The court ordered

       that Father shall have parenting time according to the Indiana Parenting Time

       Guidelines, Subsection II, subpart D,1 in the event the parties cannot agree.

       Father now appeals.




       1
         Ind. Parenting Time Guideline II (D) provides that “regular parenting time” shall include alternating
       weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and one evening per week for a period of up to
       four hours.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019                Page 6 of 15
                                    Discussion and Decision
                                            Standard of Review
[13]   Neither party requested special findings, and the trial court did not make any

       such findings sua sponte. See Ind. Trial Rule 52.2 When the trial court has not

       made findings or conclusions, we review its decision as a general judgment and,


                without reweighing evidence or considering witness credibility,
                affirm if sustainable upon any theory consistent with the
                evidence. Judgments in custody matters typically turn on
                essentially factual determinations and will be set aside only when
                they are clearly erroneous. We will not substitute our own
                judgment if any evidence or legitimate inferences support the trial
                court’s judgment.


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

       quotations omitted); see also H.H., 3 N.E.3d at 37 (“[W]hen reviewing a

       determination regarding the best interests of a child for relocation purposes, we

       ‘view the evidence in the light most favorable to the trial court’s decision and

       defer to the trial court’s weighing of the evidence.’” (quoting T.L. v. J.L., 950

       N.E.2d 779, 788–89 (Ind.Ct.App.2011))).




       2
         Nor was the trial court required to do so. “[W]hile the trial court is to consider all relevant factors [in
       determining whether relocation is in the Child’s best interest], the trial is not necessarily required to make
       specific findings on each factor unless requested to do so by the parties.” H.H. v. A.A., 3 N.E.3d 30, 37 (Ind.
       Ct. App. 2014); see also In re Marriage of Harpenau, 17 N.E.3d 342, 347 n.3 (Ind. Ct. App. 2014) (citation
       omitted) (“In modifying custody, the trial court is not required to issue special findings unless requested by a
       party.”).

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019                     Page 7 of 15
[14]   Moreover,


               there is a longstanding policy in our State that appellate courts
               should defer to the determinations of the trial courts in family
               law matters. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). We
               accord this deference because trial courts directly interact with
               the parties and are thus in a superior position “to assess
               credibility and character through both factual testimony and
               intuitive discernment.” Id. Conversely, “appellate courts ‘are in
               a poor position to look at a cold transcript of the record[ ] and
               conclude that the trial judge, who saw the witnesses, observed
               their demeanor, and scrutinized their testimony as it came from
               the witness stand, did not properly understand the significance of
               the evidence.’” D.C. [v. J.A.C.], 977 N.E.2d [951,] 956–57 [(Ind.
               2012)] (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)).


       Gold v. Weather, 14 N.E.3d 836, 841 (Ind. Ct. App. 2014).


                               Relocation of Custodial Parent
[15]   Indiana Code Sections 31-17-2.2-0.5 through 31-17-2.2-6 govern the proposed

       relocation of a custodial parent. A parent intending to relocate with a child

       must file notice of that intention, Ind. Code § 31-17-2.2-1, and the

       nonrelocating parent must file a response in which he or she may object to the

       relocation and file a motion to modify custody, I.C. § 31-17-2.2-1, -5.

       Following an objection to relocation and corresponding motion to modify

       custody, the relocating parent must prove “that the proposed relocation is made




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 8 of 15
       in good faith and for a legitimate purpose.” I.C. § 31-17-2.2-5(c).3 If the

       relocating parent meets that burden of proof, “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).4


[16]   In determining whether to permit relocation of the child or, instead, modify

       custody, the trial court must 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:




       3
         Effective July 1, 2019, this provision is contained in subsection (e) of Indiana Code Section 31-17-2.2-5.
       P.L. 186-2019, SEC. 14.
       4
           Effective July 1, 2019, this provision is contained in subsection (f) of Indiana Code Section 31-17-2.2-5. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019                       Page 9 of 15
                          (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 those factors set forth for custody determinations and modifications

       under Indiana Code Section 31-17-2-8.5 Baxendale, 878 N.E.2d at 1257.


                               Evidence of Good Faith and Legitimate Reason

[17]   To prove good faith and a legitimate reason for relocation, the relocating parent

       must “demonstrate an objective basis—that is, more than a mere pretext—for

       relocating.” Gold, 14 N.E.3d at 842 (quotation and citation omitted). Good

       faith and legitimate reasons for relocation include moving to live closer to

       family members, for financial reasons, and for employment opportunities. Id.;

       see also, e.g., H.H., 3 N.E.3d at 36 (concluding Mother’s desire to relocate in

       order to “live and create a family life with” her current husband was “made in

       good faith and for a legitimate purpose”); Gilbert v. Gilbert, 7 N.E.3d 316, 320-21




       5
         Those factors include: (1) the age and sex of the child; (2) the wishes of the child’s parent or parents; (3)
       the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14)
       years of age; (4) the interaction and interrelationship of the child with the child’s parent or parents, the child’s
       sibling, and any other person who may significantly affect the child’s best interests; (5) the child’s adjustment
       to the child’s home, school, and community; (6) the mental and physical health of all individuals involved;
       (7) evidence of a pattern of domestic or family violence by either parent; and (8) evidence that the child has
       been cared for by a de facto custodian. I.C. § 31-17-2-8.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019                      Page 10 of 15
       (Ind. Ct. App. 2014) (concluding Mother’s desire to relocate with her fiancé to a

       larger house to accommodate an expanding family and to “a better school

       district” was “a good faith and legitimate reason for moving”). And, although

       the trial court must consider the distance of the proposed relocation and the

       hardships and expense for the nonrelocating parent to exercise parenting time,

       an inconvenience caused by the relocation—even if it is out of state—does not

       alone warrant custody modification and denial of the request to relocate.

       Fridley v. Fridley, 748 N.E.2d 939, 941 (Ind. Ct. App. 2001) (citing Hanks v.

       Arnold, 674 N.E.2d 1005, 1007 (Ind. Ct. App. 1996)).


[18]   Here, the evidence established that Mother wished to relocate approximately an

       hour and a half away from Father’s residence for the legitimate purposes of

       having better job opportunities, moving Child to a better school district, being

       closer to her family, and consolidating her family with her fiancé’s family in

       one location. There was also substantial evidence that Mother did not have a

       pattern of attempting to limit Father’s contact with Child; rather, Father

       testified that Mother “work[ed] well” with him and was “flexible” with him

       regarding parenting time. Tr. at 89. Nor was there any evidence of bad faith on

       Mother’s part; Father testified that he did not believe she wished to relocate in

       order to limit his parenting time. Id. at 122. Thus, the record evidence

       supported the trial court’s conclusion that the request for relocation was made

       in good faith and for legitimate reasons. Father’s contention to the contrary is a

       request that we reweigh the evidence and substitute our judgment for that of the

       trial court, which we will not do. Baxendale, 878 N.E.2d at 1257-58.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 11 of 15
                                      Evidence of Best Interest of Child

[19]   As Mother met her burden of proving her wish to move was made in good faith

       and for legitimate reasons, the burden shifted to Father to prove that the move

       would not be in Child’s best interest. To meet that burden, Father was required

       to present evidence on each factor enumerated in Indiana Code Section 31-17-

       2.2-1(b). Harpenau, 17 N.E.3d at 347. The driving distance between Father’s

       residence and Mother’s proposed new residence was one and a half hours.

       Mother testified she was willing to drive Child half way between the two

       locations to facilitate parenting time. And, although the evidence indicated that

       Father would have to travel forty-five minutes each way to exercise his

       parenting time, Father presented no evidence that he was unable to do so. The

       evidence indicates that the hardship and expense caused by the distance of the

       relocation would not be extreme. I.C. § 31-17-2.2-1(b)(1) and (2); cf., e.g., H.S.

       v. S.K. (In re paternity of X.A.S.), 928 N.E.2d 222, 226 (Ind. Ct. App. 2010)

       (finding, in a case permitting relocation, that hardship and expense caused by

       relocation were extreme because nonrelocating parent would have to travel by

       plane and pay for lodging out of state to visit child), trans denied.


[20]   Although Father presented evidence indicating that exercising his parenting

       time would be more inconvenient if Mother relocated, he provided no evidence

       that he would not be able to preserve his relationship with Child. I.C. § 31-17-

       2.2-1(b)(3). Rather, the evidence established that—despite the inconvenience of

       a longer drive time—Father could still have parenting time with Child during

       the weekdays, every other weekend, and at all other times he had previously

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 12 of 15
       had such time. And the parties do not dispute that Mother’s “pattern of

       conduct” regarding Father’s parenting time was to promote contact with Child,

       rather than thwart it. I.C. § 31-17-2.2-1(b)(4).


[21]   As noted above, Mother provided evidence that her reasons for relocating were

       that she had better job opportunities in the new location, and the new location

       had a better school district and was closer to her fiancé, her parents, and her

       siblings and their children. I.C. § 31-17-2.2-1(b)(5)(A). Father presented

       evidence that he opposed the relocation because it would require him to spend

       more time in the car to facilitate parenting time and Child would see less of his

       friends and relatives, such as his half-siblings. I.C. § 31-17-2.2-1(b)(5)(B).

       However, Father presented no evidence that Child’s friends and relatives could

       not see Child every other weekend at Father’s house as they always had or

       come with Father to see Child during weekdays.


[22]   Father also testified that he believed the relocation was not in Child’s best

       interest because he opined that Child would not “fit in very well” at a new

       school, Tr. at 102, and it would be “too much for [Child]” to break up his

       current routine, id. at 103. However, Father presented no evidence to support

       those assertions. Rather, the evidence indicated that, if Child relocated, he

       would attend a good school that could accommodate his needs, and he would

       have consistent contact with cousins around his age, with whom he was close.

       The evidence also showed that Child’s behavior had improved recently, despite

       his recent move within Henry County and his alternating weekend stays with

       Mother and her fiancé’s family in Putnam County. Thus, Father did not

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 13 of 15
       present sufficient evidence that his reasons for opposing the relocation

       supported denial of relocation and modification of custody. I.C. § 31-17-2.2-

       1(b)(5)(B).


[23]   And the record evidence supported the trial court’s determination that

       relocation was otherwise in Child’s best interest. I.C. § 31-17-2.2-1(b)(6); I.C. §

       31-17-2-8. The evidence indicated that Child, who was age seven, was loved

       and cared for by both parents, but that Mother was the primary caregiver.

       Child has a close relationship with his relatives on Father’s side, but he is also

       close with his maternal cousins. Although Child had some behavioral issues,

       the evidence showed that Mother had obtained treatment for Child at a place

       close to the proposed new residence and that Child’s behavioral issues were

       improving. Although Child has some special needs at school, the evidence

       indicated that Child would be relocated in a better school district that could also

       accommodate his needs. And the evidence indicated that Child was adjusting

       to recent changes in his routine without additional behavioral problems.


[24]   Father failed to carry his burden of proving that relocation was not in Child’s

       best interest. Viewing the evidence in the light most favorable to the judgment,

       as we must, the evidence supports the trial court’s determination that relocation

       was in Child’s best interest. H.H., 3 N.E.3d at 37.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 14 of 15
                                               Conclusion
[25]   Considering the evidence favorable to the trial court’s judgment and the

       reasonable inferences flowing therefrom, we hold there was evidence in the

       record to support the trial court’s decision to grant Mother’s request to relocate

       and deny Father’s motion to modify custody. Father essentially requests that

       we reweigh the evidence in his favor, which we cannot do. The judgment of

       the trial court was not clearly erroneous.


[26]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1002 | October 1, 2019   Page 15 of 15
