MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               May 20 2016, 8:53 am
regarded as precedent or cited before any
court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Andrea L. Ciobanu                                       Kathleen M. Sweeney
Alex Beeman                                             Indianapolis, Indiana
Ciobanu Law, P.C.
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kirsten L. Nolan,                                       May 20, 2016
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        49A05-1511-DR-1868
        v.                                              Appeal from the
                                                        Marion Superior Court
Matthew A. Huff,                                        The Honorable Gary L. Miller,
Appellee-Petitioner.                                    Judge
                                                        The Honorable Deborah J. Shook,
                                                        Master Commissioner
                                                        Trial Court Cause No.
                                                        49D03-1209-DR-36714



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016          Page 1 of 17
[1]   Upon remand from this court, the trial court issued an order in this post-

      dissolution custody matter. Kirsten L. Nolan (“Mother”) appeals and raises the

      following two restated issues:


               I. Whether it was error for the trial court to modify physical
               custody of the parties’ children where Mother had filed a request
               to relocate with the children, but neither party had filed a motion
               to modify custody; and

               II. Whether the trial court’s decision to modify physical custody
               of the parties’ children was clearly erroneous.


[2]   We affirm.


                                    Facts and Procedural History
[3]   Father and Mother were married on August 9, 2003, and Father filed for

      dissolution in September 2012. The parties have two children, twins, born in

      2010. At some point during the course of the proceedings, Father began dating

      a woman named Kim Mills (“Kim” or “Girlfriend”) and Mother began dating

      Kim’s then-husband, Anthony Mills (“Tony” or “Boyfriend”).1


[4]   The parties successfully mediated the child-related issues,2 and the resulting

      September 2013 Partial Settlement Agreement stated, in pertinent part,




      1
       The record before us indicates that, for a period of time, Mother and Girlfriend worked together at IU
      Health and that their families were friends with each other.
      2
        The parties were not able to resolve property division issues in mediation, and those matters, unrelated to
      this appeal, went to a final hearing.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016                Page 2 of 17
      “Neither parent’s significant other[] shall be left alone with the children without

      the parent being present.” Appellant’s App. at 23.3 The trial court incorporated

      the agreed-upon matters into the March 2014 Decree of Dissolution (“the

      Decree”), including the following stipulation by the parties: “The parties

      stipulate that Mother’s boyfriend, Anthony Mills, will not live with Mother or

      be left alone with the children.” Id. at 39. The Decree denied Mother’s

      previously-filed request to relocate with the children to Colorado, and it

      provided that Father was entitled to parenting time in excess of the Indiana

      Parenting Time Guidelines, in accordance with the parties’ Settlement

      Agreement. Under that arrangement, the weekly schedule was as follows:

      Father had the children every other weekend, and, in addition, on the weeks

      preceding his alternating weekends, he had the children on Tuesday overnight;

      on the weeks preceding Mother’s weekends, Father had the children on

      Tuesday evenings for several hours and also Thursday overnight. Id. at 20-21,

      39. Father also exercised summer and holiday time with the children according

      to an agreed-upon schedule.


[5]   Following the issuance of the Decree, Mother filed, among other things, a

      motion to correct error and a motion to reconsider. In May 2014,

      approximately two months after the Decree was issued, Mother filed another




      3
        We note that the Appellant’s Appendix that was filed electronically is not identical to the hard copy that
      was also submitted, which appears to be the Appendix from the parties’ prior appeal to this court; the two are
      substantially the same, other than the electronically-filed Appendix appears to have a more complete
      Chronological Case Summary, ending with an entry dated November 25, 2015. We will refer to the pages of
      the electronically-filed Appendix.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016               Page 3 of 17
      motion to relocate, in which she sought permission to move with the children to

      Seymour, Indiana where her parents and other family members live and

      permission to allow Boyfriend to live with her. In response, Father filed a

      motion in opposition to Mother’s request to relocate, and he filed a motion for

      rule to show cause, alleging that Mother was allowing Boyfriend to live with

      her in violation of the Decree.


[6]   On May 29 and June 6, 2014, the trial court heard evidence on the various

      pending motions. With regard to her desire to move to Seymour, Mother

      explained that her parents live there, and they had been involved in providing

      childcare to the twins since birth, noting that the children have, and have

      always had, bedrooms and toys and belongings at that residence. Mother

      testified that her parents planned to have her take over the payments on the

      home. Mother proposed that, if the court would grant her request to move, the

      visitation exchanges be ordered to take place at Father’s place of employment in

      Edinburgh, Indiana. Upon questioning, Mother stated that, on average,

      Boyfriend stayed overnight at her home 3-4 nights per week in April and May,

      following the Decree. Mother and Boyfriend maintained that her home was

      not his “legal residence” and that his “legal residence” was at his brother’s

      home. Tr. at 76, 114.


[7]   Girlfriend also testified at the June 6 hearing. She testified that during her

      marriage to Tony, she observed frequent instances of anger and violence by him

      toward their two children, who at the time of the hearing were eleven and

      thirteen years old. She described that he was particularly physically violent

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 4 of 17
      with the older child, hitting him with objects and being verbally abusive toward

      both children. She testified that Tony raped her approximately twenty times in

      about an eighteen-month period when she refused to have sex with him. Id. at

      121.


[8]   Father testified that he opposed Mother’s request to relocate to Seymour with

      the children, believing that it would reduce his share of quality time with the

      children. However, if the trial court chose to grant Mother’s request to move,

      he asked the trial court to adopt his proposed modified parenting time schedule,

      which he referred to as a “5-2” schedule,4 whereby the parents alternate

      exercising a five day/two day schedule with the children. Pet’r’s Ex. A. Father

      testified that his proposal would reduce the number of visitation exchanges in a

      week, thereby reducing travel time as well. Father opposed Mother’s request to

      allow Boyfriend to live with her, noting concern about issues of anger and

      violence and alleged “internet sexual activities.” Tr. at 73. He requested that

      the prior order, requiring that Boyfriend not be around the parties’ children

      unless Mother was present, remain in effect.


[9]   On November 10, 2014, the trial court issued an order (“November 2014

      Order”), which, among other things, granted Mother’s request to relocate with




      4
        Under a “5-2” parenting time schedule, one parent exercises five days with the children and the other parent
      receives two days in a given week; the following week, it switches so that the parent who last exercised five
      days with the children, exercises two days with them, and vice versa. Thereafter, the cycle repeats.
      Appellant’s Br. at 24 n.10.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016              Page 5 of 17
       the children to Seymour and adopted Father’s proposed modified “5-2”

       parenting time schedule. The November 2014 Order included the following:


               Having considered all the allegations and evidence presented
               regarding the relocation, the Court grants Mother’s petition to
               relocate to Seymour, but also accepts and order’s [sic] Father’s
               custody and parenting time plan, as seen in his Exhibit “A”
               attached hereto. Given that Father will now have a greater
               number of overnights per month than Mother, he now has
               primary physical custody. The parties are ordered to submit
               revised support worksheets within 10 days.


       Appellant’s App. at 49-50.


[10]   As to Father’s motion for rule to show cause, which alleged Mother was

       violating the Decree by allowing Boyfriend to live at her residence, the trial

       court expressed that it was “troubled” by Mother’s “blatant disregard of its

       prior order, under the guise of Mother’s house not being [Boyfriend’s] ‘legal

       residence,’” and it found her in contempt. Id. at 48-49. The trial court ordered:


               Mother may not allow [Boyfriend] to stay overnight in the same
               house as her children, until further order of this Court. The
               sanction for her contempt will remain under advisement, and its
               nature and severity will be determined by how well Mother
               abides by this Court’s orders, and whether parental alienation or
               other improper influence regarding the children continues to be
               an issue.


       Id. at 50.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 6 of 17
[11]   Mother appealed. Among other things, she asserted that it was error for the

       trial court to sua sponte modify custody, when neither she nor Father had filed a

       motion to modify custody. She also argued that the trial court abused its

       discretion when it modified custody because it did not find a substantial change

       in circumstances to warrant modification and it did not find the modification

       was in the best interest of the children. On August 24, 2015, a panel of this

       court issued a memorandum decision, Nolan v. Huff, No. 49A04-1412-DR-565

       (Ind. Ct. App. Aug. 24, 2015). This court rejected Mother’s claim that the trial

       court erred because it sua sponte modified custody. On that issue, the Nolan

       court stated,


               The court did not change custody sua sponte. Pursuant to Trial
               Rule 15(B), if “issues not raised by the pleadings are tried by
               express or implied consent of the parties, they shall be [tr]eated in
               all respects as if they had been raised in the pleadings.” See
               Higginbotham v. Higginbotham, 822 N.E.2d 609, 613 (Ind. Ct.
               App. 2004). The relocation statute states in pertinent part:
               “Upon [motion] of a party, the court shall set the matter for a
               hearing to review and modify, if appropriate, a custody order,
               parenting time order, grandparent visitation order, or child
               support order.” Ind. Code § 31-17-2.2-1(b) (emphasis added).
               Mother impliedly consented to have custody considered at the
               hearing when she petitioned to relocate, and the court did not
               modify custody sua sponte. See Baxendale v. Raich, 878 N.E.2d,
               1252, 1253 (Ind. 2008) (trial court may order a change of custody
               on relocation).


       Id. at *1 n.3.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 7 of 17
[12]   With regard to the change in physical custody, the Nolan court determined that

       the trial court failed to provide an explanation to support its conclusion for a

       change of custody. It explained,

               While the trial court did state it “considered all the allegations
               and evidence presented,” . . . it did not articulate what allegations
               and evidence were considered that would impact the best
               interests of the children. Our Supreme Court held, in Wilson v.
               Myers, 997 N.E.3d 338 (Ind. 2013), that although the trial court
               had mentioned “looking at ‘the whole picture’ in making its
               decision, . . . [the order] provided no insight into what was
               contained in that picture[.]” Id. at 341. This is analogous to the
               situation before us. Much testimony was heard by the trial court
               but nothing was reduced to writing.


               While it seems apparent the move was made in good faith
               because the marital residence is either for sale or sold, that is
               merely the first step of consideration of a relocation request. See
               Ind. Code § 31-17-2.2-5. After good faith is established, the
               nonrelocating parent must show the move is not in the best
               interest of the children. Id. We cannot assume from the order
               entered that the court so found. We have no indication how the
               trial court applied any factors from either section 8 or the
               relocation statutes. By not providing a justification, the trial court
               abused its discretion when modifying custody, and we reverse and
               remand to the trial court to explain why Mother’s relocation requires a
               modification of custody.


       Id. at *3-4 (emphasis added).


[13]   Mother did not ask for rehearing on the Nolan decision or seek transfer to the

       Indiana Supreme Court. Thereafter, on October 8, 2015, the trial court issued



       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 8 of 17
an Order on Modification of Custody (“Order on Remand”).5 In pertinent part,

it stated:


        The Appellate Court found Judge McCarty’s Order lacking the
        requisite explanation for this modification under either Ind. Code
        31-17-2-21 (factors the court must consider on a request to
        modify custody) or Ind. Code 31-17-2.2-5 (factors the court must
        consider on a contested relocation when modifying custody).


        While the court must consider the statutory factors in modifying
        custody, these are not the sole factors considered. In this
        particular case, the children are very young and a number of the
        statutory factors are geared toward children who have friends in
        their neighborhoods, friends in school and have the ability to
        interact with their communities. Due to the children’s young age
        many of those factors were inapplicable.


        ....


        In analyzing the facts presented to the court which resulted in the
        November 2014 Order, the court emphasized facts relating to
        Mother’s violation of the stipulated Order from the Decree that
        barred Mother from allowing [Boyfriend] to live with her.
        Mother was also ordered not to leave the children alone with
        [Boyfriend]. Mother attempted to minimize her violation of the
        stipulated Order by using a distinction between “living with her”
        and [Boyfriend] having a “legal residence” elsewhere. Mother
        was found to have blatantly disregarded the court’s prior order
        under the guise of Mother’s house not being [Boyfriend’s] “legal



5
  We note that the Honorable Patrick L. McCarty retired sometime after issuing the November 2014 Order
that granted Mother’s request to relocate to Seymour, found Mother in contempt, and modified physical
custody to Father. The Honorable Gary L. Miller and Master Commissioner Deborah J. Shook signed the
October 2015 Order.

Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016         Page 9 of 17
        residence.” The stipulated order arose after Mother admitted
        that [Boyfriend] had engaged in soliciting sexual partners through
        the internet. Mother admitted [Boyfriend] had been and
        continued to live in Mother’s home 3-4 nights per week.
        Mother’s continuing violation of the court’s Order and attempt to
        distinguish the living arrangements was dishonest.


Appellant’s App. at 53-55. The trial court observed that Mother was aware of the

allegations concerning anger and physical violence by Tony toward his

children, as well as Kim’s testimony that he raped her numerous times, and


        [d]espite knowing these issues and agreeing to not allow him to
        live with her, Mother continued to expose her children to this
        individual, and allowed him to live in the home with them.
        Mother disregarded the court’s order for her personal
        gratification and as such she disregarded her children altogether.


        Mother’s continued disregard of the court’s order regarding [Boyfriend],
        her dishonesty about it, and her failure to consider as paramount the
        safety of her children serves as the substantial change in circumstances
        which supports the modification of custody from Mother to Father.


Id. at 55 (emphasis added). The trial court added that even though the

November 2014 Order did modify custody, “Judge McCarty gave both parents

nearly equal parenting time as in a shared custody arrangement,” which was




Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 10 of 17
       “more than generous given the facts of this case and the level of animosity

       between these parents.”6 Id. at 56. Mother now appeals.7


                                        Discussion and Decision

                                 I. Authority to Modify Custody
[14]   Initially, Mother claims that the trial court committed reversible error in

       modifying custody of the parties’ children “where neither party moved for a

       modification of custody.” Appellant’s Br. at 17, 20-21. Mother concedes that

       she “raised this same issue” in her first appeal, and that the Nolan court

       rendered a decision against her on the matter, which she “did not challenge by

       way of a petition for rehearing or a petition for transfer,” but she asks us to

       nevertheless reconsider the issue. Id.


[15]   The doctrine of res judicata prevents the repetitious litigation of that which is

       essentially the same dispute. French v. French, 821 N.E.2d 891, 896 (Ind. Ct.

       App. 2005). The principle of res judicata is divided into two branches: claim

       preclusion and issue preclusion. Id. Claim preclusion applies where a final

       judgment on the merits has been rendered which acts as a complete bar to a

       subsequent action on the same issue or claim between those parties and their




       6
         In its Order on Remand, the trial court noted that “these are chronically high conflict parents,” and it
       expressed frustration that “[t]he children are caught squarely in the middle,” which is “the ongoing tragedy in
       this case.” Appellant’s App. at 54, 56. It cautioned the parents to “consider how their constant bickering will
       affect their children.” Id. at 56. We echo that sentiment.
       7
        Contemporaneously with the filing of her Reply Brief, Mother filed a Motion to Strike portions of Father’s
       Appellee’s Brief. We denied Mother’s motion by separate order.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016              Page 11 of 17
       privies. Id. Issue preclusion, also referred to as collateral estoppel, bars the

       subsequent relitigation of the same fact or same issue between the same parties

       or their privies where that fact or issue was necessarily adjudicated in a former

       suit and the same fact or issue is presented in a subsequent action. Id. Where

       issue preclusion applies, the previous judgment is conclusive only as to those

       issues actually litigated and determined therein. Id.


[16]   Here, the trial court’s November 2014 Order granted Mother’s request to

       relocate but modified physical custody to Father. Mother appealed, specifically

       raising the issue of whether it was an abuse of discretion for the trial court to

       change custody “sua sponte.” Nolan, at *1 n.3. The Nolan court rejected her

       claim of error. Id. According to the record before us, Mother did not in any

       way seek review of the Nolan decision; she did not ask for rehearing, seek

       transfer, nor did she file any objection with the trial court. Based on the

       doctrine of res judicata, we conclude that the claimed error has previously been

       decided, and the issue can, therefore, no longer be litigated.


                                II. Decision to Modify Custody
[17]   Next, Mother claims that the trial court erred in finding that there had been a

       substantial change in circumstances to warrant a modification in custody and

       that the modification was in the children’s best interests. As Mother observes,

       “In this case, certain findings and conclusions were made by the trial court,”

       and, accordingly, we “‘shall not set aside the findings or judgment unless

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


       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 12 of 17
       court to judge the credibility of the witnesses.’” D.C. v. J.A.C., 977 N.E.2d 951,

       953 (Ind. 2012) (quoting Best v. Best, 941 N.E.2d 599, 502 (Ind. 2011) and

       Indiana Trial Rule 52(A)); Appellant’s Br. at 20. Findings are clearly erroneous

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

       inference. Id. “Judgments in custody matters typically turn on essentially

       factual determinations and will be set aside only when they are clearly

       erroneous.” Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008).

       Additionally, there is a well-established preference in Indiana “for granting

       latitude and deference to our trial judges in family law matters.” Steele-Giri v.

       Steele, -- N.E.3d --, No. 45S04-1512-DR-682 (Ind. Mar. 15, 2016). As the Steele-

       Giri Court recently reiterated:


               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. On 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. Appellate judges are
               not to reweigh the evidence nor reassess witness credibility, and
               the evidence should be viewed most favorably to the judgment.


       Id. at *3 (internal citations and quotations omitted).


[18]   Indiana Code section 31-17-2-21 (“Section 21”) provides that a trial court may

       not modify a child custody order unless: (1) the modification is in the best

       interests of the child; and (2) there is a substantial change in one or more of the


       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 13 of 17
       factors that the court may consider under Indiana Code § 31-17-2-8 (“Section

       8”). Section 8 provides that the trial court is to consider all relevant factors,

       including:


               (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:
                   (A) the child’s parent or parents;
                   (B) the child’s sibling; and
                   (C) any other person who may significantly affect the child’s
               best interests.
               (5) The child’s adjustment to the child’s:
                   (A) home;
                   (B) school; and
                   (C) community.
               (6) The mental and physical health of all individuals involved.
               (7) Evidence of a pattern of domestic or family violence by either
               parent.
               (8) Evidence that the child has been cared for by a de facto
               custodian.


[19]   The Family Law title in the Indiana Code includes a chapter dedicated to

       addressing the relocation of a parent. See Ind. Code ch. 31-17-2.2. If a parent

       desires to relocate, he or she must file a notice of the intent to move. Ind. Code

       § 31-17-2.2-1(a). The non-relocating parent may thereafter file a motion seeking

       an order to prevent the relocation, and upon motion of either parent, the trial

       court must hold a hearing to review and modify custody “if appropriate.” Ind.

       Code § 31-17-2.2-1(b). “In determining whether to modify a custody order,”

       the court is directed to consider a number of relocation-oriented factors that are

       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 14 of 17
       set out in section 31-17-2.2-1(b) – such as the financial impact of relocation on

       the affected parties, the motivation for the relocation, and the effects on the

       child and parents – and other factors “identified in Section 8 as relevant to

       every change of custody.” Baxendale, 878 N.E.2d at 1256. Subsection 2(b) of

       the statute expressly provides that “the trial court may consider a proposed

       relocation of a child as a factor in determining whether to modify a custody order[.]”

       Ind. Code § 31-17-2.2-2(b) (emphasis added).


[20]   Our Supreme Court has rejected the proposition that Section 21 requires that a

       change in one of the original Section 8 factors must be found before a change of

       custody may be ordered in a relocation, noting that chapter 2.2 “is a self-

       contained chapter and does not by its terms refer to the general change of

       custody provisions.” Baxendale, 878 N.E.2d at 1257. Furthermore, chapter 2.2.

       “incorporates all of the Section 8 considerations, but adds some new ones,” and

       because consideration of the new factors might change the balance, “the current

       statutory framework does not necessarily require a substantial change in one of

       the original Section 8 factors.” Id.


[21]   Here, in its Order on Remand, the trial court found that “Mother’s continued

       disregard of the court’s order regarding [Boyfriend], her dishonesty about it,

       and her failure to consider as paramount the safety of her children serves as the

       substantial change in circumstances which supports the modification of custody

       from Mother to Father.” Appellant’s App. at 55. Mother argues that, contrary to

       the Order on Remand: (1) she did not “continually disregard” an order, stating,

       “This is the only time that Mother has been held in contempt by the Court’s

       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 15 of 17
       order”; (2) she “was not dishonest about [Boyfriend] staying with her,” given

       that she “voluntarily and honestly” testified to the court that he stayed three to

       four nights a week; and (3) although Boyfriend “did stay with Mother from

       time-to-time,” there was “no evidence” that the children’s health or safety ever

       was at issue. Appellant’s Br. at 26-27 (emphasis in original). She argues that

       Father failed to prove that the modification was in the children’s best interests

       and that her relationship with Boyfriend “is insufficient” to justify modification.

       Id. at 28. That is, she argues, the trial court’s focus on the Boyfriend was

       erroneous: “[Boyfriend] is irrelevant to whether a modification is in [the

       children’s] best interests and [his] relationship with Mother has no bearing on

       the best interests of the parties’ children.” Id. (emphasis in original). We

       cannot agree.


[22]   The March 2014 Decree ordered that Boyfriend was not to live with Mother,

       yet for the two months that followed, Boyfriend stayed with Mother, on

       average, three to four nights per week. The trial court considered this conduct a

       blatant disregard of its prior order and, after hearing Mother’s testimony on the

       subject, considered Mother’s “attempt to distinguish the living arrangement” as

       not his “legal residence” to be dishonest. Appellant’s App. at 55. The trial court

       also heard testimony about Boyfriend, specifically allegations of violence

       against his children and then-wife (now Father’s girlfriend). The trial court’s

       Order on Remand stated, “The children’s health and safety is of great concern

       to this court in this and any other dissolution proceeding,” and Mother, who




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 16 of 17
       allowed Boyfriend to stay overnight at her home, failed to place the safety of

       her children as the paramount consideration. Id.


[23]   “Appellate judges are not to reweigh the evidence nor reassess witness

       credibility, and the evidence should be viewed most favorably to the judgment.”

       Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Here, Mother sought to relocate

       with the children to Seymour, and the trial court granted her request to do so,

       but it also adopted Father’s proposed “5-2” parenting schedule, which

       somewhat increased Father’s overnights with the children, but reduced the

       number of visitation exchanges in a week and the accompanying travel time for

       the children. Under that new parenting schedule, Father, at least in some

       months, would have the children a slightly greater number of days than would

       Mother and, as a result, the trial court determined, “he now has primary

       physical custody.” Appellant’s App. at 50. “On 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.”

       Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). We cannot say that the trial

       court’s decision to modify physical custody to Father was in error.


[24]   Affirmed.


[25]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-DR-1868 | May 20, 2016   Page 17 of 17
