MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jul 29 2020, 10:47 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT
William O. Harrington
Harrington Law, P.C.
Danville, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Jacob W. Stevenson,                                       July 29, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          20A-JP-101
        v.                                                Appeal from the Hendricks
                                                          Superior Court
Jessica A. Matthews,                                      The Honorable Michael Joe
Appellee-Respondent                                       Manning, Magistrate
                                                          Trial Court Cause No.
                                                          32D03-1804-JP-54



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020                   Page 1 of 11
                                              Case Summary
[1]   Jacob W. Stevenson (Father) appeals the trial court’s denial of his petition for a

      temporary order restraining Jessica A. Matthews (Mother) from relocating from

      Indiana to Pennsylvania with the parties’ minor son, J.S., until a hearing can be

      held on his objection to the proposed relocation. He claims that some of the

      trial court’s findings of fact and conclusions thereon are clearly erroneous. We

      affirm the trial court’s denial of Father’s petition for a temporary order, but

      remand for further proceedings on the relocation issue.


                                  Facts and Procedural History
[2]   Mother and Father are the biological parents of J.S., born on December 26,

      2016. Mother and Father were never married. At the time of J.S.’s birth,

      Mother lived in Indianapolis and Father lived in Danville.


[3]   Father filed a petition to establish paternity and a request for a temporary

      restraining order in April 2018. The petition included a verified statement from

      Father that “Mother has indicated to Father that she intends to move out of the

      State of Indiana with [J.S.] at the beginning of May.” Appellant’s App. Vol. 2

      at 17. Accordingly, the petition to establish paternity included a request for a

      temporary order restraining Mother from relocating with J.S. while the matter

      was pending. On April 23, 2018, the trial court entered an order that Mother

      “shall not be allowed to move the parties’ minor child from the State of Indiana

      until a hearing is held on said matter.” Id. at 20. A hearing was scheduled for

      May 31, 2018.


      Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020   Page 2 of 11
[4]   Prior to the hearing, on May 17, 2018, Mother filed a notice of intent to

      relocate. Mother indicated in the notice that she intended to relocate with J.S.

      from Indiana to McDonald, Pennsylvania, “at the earliest possible date

      permissible under the statute.” Id. at 22. Father filed his objection to Mother’s

      proposed relocation on May 22, 2018.


[5]   After numerous continuances, followed by several months of the parties

      participating in alternative dispute resolution, on January 14, 2019, Mother and

      Father filed an agreed entry that was approved by the trial court the same day.

      The agreed entry provided that it represented “an amicable settlement of all

      disputes between [the parties] involving the custody, parenting time and support

      of, and all other issues on paternity matter[.]” Id. at 28. The agreement

      provided that the parties would share legal custody of J.S., that Mother should

      be considered the “custodial parent” pursuant to the Indiana Parenting Time

      Guidelines, that Father was granted parenting time in alternating weeks of

      Wednesday evening to Sunday evening, and that Father would pay Mother

      child support. Id. at 30. The agreement further provided that “Mother

      withdraws her Notice of Intent to Relocate filed on or about May 17, 2018.

      Each party agrees to notify the other if they plan on taking the child out of the

      State of Indiana.” Id. at 31.


[6]   On November 11, 2019, Mother filed a petition to modify the agreed order and

      a second notice of intent to relocate stating that it was her intent to permanently

      relocate to Pennsylvania. Specifically, Mother stated that she was engaged to

      be married to a man who resides in Pennsylvania and due to give birth to their

      Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020   Page 3 of 11
      child within a matter of weeks. Mother stated that she wished to relocate so

      that she, her fiancé, her new baby, and J.S., could all reside together. Mother

      further requested a modification of Father’s parenting time and child support

      obligation “if the court finds it to be in J.S.’s best interests” following a

      relocation hearing. Id. at 36. The next day, Father filed his objection to

      Mother’s proposed relocation and requested a temporary order restraining

      Mother from relocating until an evidentiary hearing could be held on the

      relocation issue. On November 15, 2019, the trial court set the matter for

      hearing “concerning [Father’s] request for a temporary order restraining

      relocation pending hearing pursuant to Ind. Code 31-17-2.2-6.” Id. at 43.


[7]   The parties appeared for a hearing on November 27, 2019. 1 Thereafter, on

      December 3, 2019, the trial court entered its “Order Denying Request for

      Temporary Order Restraining Relocation.” Specifically, the trial court found

      and concluded as follows:


              1. For purposes of IC 31-17-2.2, “relocation” means a change in
                 the primary residence of an individual for a period of at least
                 sixty (60) days.


              2. Mother filed a Notice of Intent to Relocate on May 17, 2018.


              3. Mother moved her primary residence to McDonald[,]
                 Pennsylvania[,] in May 2018.



      1
       The trial court’s order indicates that the hearing occurred on November 25; however, the chronological case
      summary and the transcript of the hearing both indicate that the hearing occurred on November 27. We
      presume that the trial court’s order merely contains a typographical error.

      Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020                    Page 4 of 11
        4. Concerning custody and parenting time, Mother and Father
           reached an agreement and submitted to the Court an Agreed
           Entry approved by the Court on January 14, 2019.


        5. Mother’s November 11, 2019 Notice of Intent to Relocate
           was unnecessary as Mother had already relocated in May
           2018 and Father’s previous objection to that relocation was
           resolved by the January 2019 agreement.


        6. The Court may only grant a temporary order restraining the
           relocation of the child or order the child to be returned to the
           nonrelocating parent if the Court makes the necessary
           findings required by I.C. 31-17-2.2-6(a).


        7. Based on the facts and circumstances, the Court is unable to
           make the necessary findings required by I.C. 31-17-2.2-6(a).


Appealed Order at 1. Accordingly, the trial court ordered that “Father’s request

for temporary order restraining relocation of the child pending hearing is

Denied. The Court sets the matter for hearing concerning Mother’s Verified

Petition to Modify Parenting Time and Child Support for February 25,

2019….” Id. Father subsequently filed a motion to correct error, which the trial

court denied. Upon Father’s motion pursuant to Indiana Trial Rule 54(B), and

finding no just reason for delay, the trial court entered final judgment on its

order denying Father’s request for a temporary restraining order and stayed

resolution of Mother’s petition to modify pending this appeal. We will provide

additional facts in our discussion where necessary.




Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020   Page 5 of 11
                                       Discussion and Decision
[8]   We begin by noting that Mother has not filed an appellee’s brief. When an

      appellee fails to submit a brief, we do not undertake the burden of developing

      arguments for the appellee, and we apply a less stringent standard of review.

      Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Thus, we may

      reverse if the appellant establishes prima facie error, which is error at first sight,

      on first appearance, or on the face of it. Id. at 351-52. This rule relieves us of

      the burden of controverting arguments advanced in favor of reversal where that

      burden properly rests with the appellee. Id. at 352. In any event, we are still

      obligated to correctly apply the law to the facts in the record in order to

      determine whether reversal is required. Id.


[9]   We must also observe at the outset that this is not an appeal from the trial

      court’s order on Mother’s request to relocate and Father’s objection thereto.

      No evidentiary hearing has occurred on that issue. Rather, this is an appeal

      from the trial court’s denial of Father’s petition for a temporary order

      restraining relocation of the child pending an evidentiary hearing on the

      relocation issue. We find this distinction especially pertinent under the

      circumstances. 2




      2
        The trial court acknowledged and agreed with Father’s attorney that the current hearing was not a “full-
      blown hearing on whether [Mother] gets to move or not” but was limited to Father’s “request for
      temporary…order restraining relocation pending final hearing.” Tr. Vol. 2 at 4-5.

      Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020                     Page 6 of 11
[10]   In denying Father’s petition for a temporary order restraining Mother from

       relocating, the trial court entered findings of fact and conclusions thereon

       following an evidentiary hearing. Accordingly, we review the court’s judgment

       under our clearly erroneous standard. E.g., Salyer v. Washington Regular Baptist

       Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020). We “neither reweigh

       evidence nor judge witness credibility.” R.L. v. Ind. Dep’t of Child Servs. & Child

       Advocates, Inc., 144 N.E.3d 686, 689 (Ind. 2020). Findings are clearly erroneous

       only when the record contains no facts to support them either directly or by

       inference. T.R. v. E.R., 134 N.E.3d 409, 414 (Ind. Ct. App. 2019). A judgment

       is clearly erroneous if the court applied an incorrect legal standard to the facts.

       Id.


[11]   We agree with Father that some of the trial court’s findings of fact are indeed

       unsupported by the evidence in the record. First, the trial court found that

       “Mother moved her primary residence to McDonald[,] Pennsylvania[,] in May

       2018.” Appealed Order at 1. However, during the hearing, Mother testified

       that she had not relocated to Pennsylvania. She stated that she maintained a

       full-time residence in Indiana until September 2018, and that although she had

       been spending considerable time with J.S. in Pennsylvania since May 2018, she

       still considered her principal residence to be on Heaton Avenue in Indianapolis.

       Similarly, Father described Mother as simply “spend[ing] … time in

       Pennsylvania,” Tr. Vol. 2 at 7, and at no time has Father contended that

       Mother has already relocated with J.S. without court permission or in violation

       of the parties’ January 2019 agreed entry. Mother testified that her second


       Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020   Page 7 of 11
       notice of intent to relocate was just that: a notice of her future intent. She

       assured the court that she would not relocate permanently to Pennsylvania with

       J.S. unless and until the court allows her to do so following a relocation

       evidentiary hearing. Id. at 21. The trial court’s contrary finding is unsupported

       by the evidence in the record.


[12]   In finding number 5, the trial court made another unsupported finding, that

       then resulted in an erroneous conclusion. Specifically, the court found that

       “Father’s previous objection to the relocation was resolved by the January 2019

       agreement” and that therefore “Mother’s [second] Notice of Intent to Relocate

       was unnecessary as Mother had already relocated in May 2018[.]” Appealed

       Order at 1. Contrary to this finding, Mother expressly withdrew her first request

       to relocate pursuant to the parties’ January 2019 agreed entry. Nowhere in the

       agreement did Father withdraw his objection or consent to Mother’s relocation

       out of state with J.S. and, in fact, the parties specifically agreed “to notify the

       other if they plan on taking the child out of the State of Indiana.” Appellant’s

       App. Vol. 2 at 31. Accordingly, the court’s finding that Father had essentially

       consented to Mother’s relocation with J.S. pursuant to the parties’ agreement is

       contrary to the evidence. Moreover, the court’s corresponding conclusion that

       Mother’s second notice of intent to relocate was superfluous as a result of this

       nonexistent resolution of the relocation issue is erroneous.


[13]   Still, even in light of these erroneous findings and conclusion, we cannot say

       that the trial court’s ultimate decision was clearly erroneous. That is to say, we

       think that the trial court was within its discretion to deny Father’s request for a

       Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020   Page 8 of 11
temporary restraining order pursuant to Indiana Code Section 31-17-2.2-6.

That section provides in relevant part,


        (a) If a nonrelocating parent files a motion under section 5(a)(3)
        of this chapter [motion requesting a temporary or permanent
        order to prevent the relocation of the child], the court, after
        notice and an opportunity to be heard or after compliance with
        Trial Rule 65(B), may grant a temporary order restraining the
        relocation of a child or order the child to be returned to the
        nonrelocating parent if the court finds:

        (1) that the notice required under section 3 of this chapter [notice
        of intent to move] was not served in a timely manner and the
        parties have not presented an agreement regarding the relocation
        of the child;
        (2) that the child has been relocated without:
            (A) the appropriate notice;
            (B) an agreement between the parties; or
            (C) a court order; or
        (3) from an examination of the evidence presented at the
        temporary hearing, that there is a likelihood that, after a final
        hearing, the court will not approve the relocation of the child.


In other words, “if ” the trial court makes the necessary findings pursuant to

Section 31-17-2.2-6(a), the court “may grant a temporary order restraining the

relocation of the child” until the matter can be presented at a final hearing. Id.

(emphases added); see 14 J. ERIC SMITHBURN, INDIANA PRACTICE SERIES,

FAMILY LAW § 8:14 (Nov. 2019 update) (noting that relocation statute

authorizes trial court to conduct a “temporary hearing” and make other

“temporary” orders in relocation cases). Here, the trial court concluded that,

based upon the facts presented, it was “unable to make the necessary findings

Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020   Page 9 of 11
       required by I.C. 31-17-2.2-6(a)” and therefore declined to issue a temporary

       order restraining relocation. Appealed Order at 1. The ultimate decision

       regarding whether to grant a temporary order pursuant to Indiana Code Section

       31-17-2.2-6(a) clearly rests within the discretion of the trial court. See G.E. v.

       Indiana Dep’t of Child Services, 29 N.E.3d 769, 771 (Ind. Ct. App. 2015) (noting

       that word “shall” in a statute is construed as mandatory language creating a

       statutory right to a particular outcome after certain conditions are met, while

       term “may” ordinarily implies a permissive condition and a grant of discretion).

       Even in light of the foregoing erroneous findings, Father has not convinced us

       that we should second-guess the court’s discretionary decision on this issue. 3


[14]   In sum, Father has not demonstrated that the trial court abused its discretion or

       clearly erred in denying his motion for a temporary order restraining relocation

       pursuant to Indiana Code Section 31-17-2.2-6. However, both parents are

       entitled to an evidentiary hearing and a ruling on Mother’s second notice of

       intent to relocate and Father’s objection thereto. Accordingly, we affirm the

       trial court’s denial of the temporary restraining order, but remand for a full

       evidentiary hearing on the relocation issue along with Mother’s currently

       pending petition to modify parenting time and child support filed



       3
         Father makes no claim that Mother gave improper notice pursuant to Indiana Code Section 31-17-2.2-
       6(a)(1), and he further concedes that there would have been no evidentiary basis for the trial court to
       conclude that a temporary order restraining relocation was warranted under subsection (a)(2). To the extent
       that he suggests that the trial court should have found from the evidence presented “that there is a likelihood
       that, after a final hearing, the court will not approve the relocation of the child” under subsection (a)(3), we
       decline Father’s invitation to reweigh the evidence, and we remind him that even “if” the trial court had
       made that finding, the trial court was still well within its discretion to deny the request for the temporary
       order restraining relocation.

       Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020                       Page 10 of 11
       simultaneously with her second notice of intent to relocate. During that

       hearing, the trial court shall consider the factors listed in Indiana Code Section

       31-17-2.2-1(c) and determine whether Mother’s proposed relocation is in the

       best interests of J.S. See Ind. Code § 31-17-2.2-5(e)-(f) (providing that “[t]he

       relocating individual has the burden of proof that the proposed relocation is

       made in good faith and for a legitimate reason” and “[i]f the relocating

       individual meets the burden of proof under subsection (e), the burden shifts to

       the nonrelocating parent to show that the proposed relocation is not in the best

       interest of the child.”).


[15]   Affirmed and remanded.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JP-101 | July 29, 2020   Page 11 of 11
