 Pursuant to Ind.Appellate Rule 65(D), this
 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:

LISA K. ROSENBERGER                                LEANNA WEISSMANN
Vevay, Indiana                                     Lawrenceburg, Indiana

                                                                           FILED
                                                                        May 09 2012, 9:24 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                 CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




IN RE THE MARRIAGE OF:                             )
                                                   )
TANYA A. (BENNETT) LOUDERBACK,                     )
                                                   )
       Appellant-,                                 )
                                                   )
               vs.                                 )     No. 58A01-1109-DR-449
                                                   )
EDWARD L. BENNETT,                                 )
                                                   )
       Appellee-.                                  )


                        APPEAL FROM THE OHIO CIRCUIT COURT
                          The Honorable James D. Humphrey, Judge
                               Cause No. 58D01-0509-DR-18


                                           May 9, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Tanya Louderback (Mother) appeals the trial court’s order granting Edward Bennett’s

(Father) motion to modify custody of A.B., the minor child born to the marriage of Mother

and Father, awarding primary physical custody to Father. Mother presents the following

consolidated, restated issues for review:

       1.     Did the trial court err in sua sponte conducting a provisional hearing on
              Father’s modification request?

       2.     Did the trial court abuse its discretion by modifying custody of A.B.?

       We affirm.

       The facts are that Mother and Father divorced in Ohio County, Indiana when A.B. was

four years old. Pursuant to a settlement agreement submitted by the parties, Mother was

awarded primary physical custody of A.B. and Father was granted visitation rights consistent

with the Indiana visitation guidelines, as well as any extra visitation upon which the parties

agreed. Because of the nature of Father’s employment, Father exercised visitation with A.B.

well beyond the minimum amount set out in the Indiana guidelines – sometimes as much as

fifteen days per month. Five years after the dissolution, Mother informed Father that she was

moving from her home in Ohio County, where both parties had lived since the divorce, to

Nancy, Kentucky. Mother later advised the court, after she had already moved, that the

reason for the move was to secure employment and to be close to her family, including her

mother. Mother had been unemployed since 2008, and had been living on child support,

unemployment compensation, and income derived from a previous husband. Mother did, in

fact, move to Nancy after the completion of the 2010-2011 school year. She and her

boyfriend moved into her mother’s residence there. Prior to the move, A.B. had seen her
                                              2
maternal grandmother only once or twice per year. After she moved there, Mother obtained

work at a marina earning $7.45 per hour.

       At the time Mother moved, Father, who continued to reside in Ohio County, had been

in a relationship with Carey Nowlin for three years and the two were engaged to be married.

A.B. enjoyed a good relationship with Nowlin and Nowlin’s seven-year-old daughter. A.B.

also enjoyed a “very close” relationship with her paternal grandparents, who lived in Ohio

County, and spent a lot of time with them before the move. Appellant’s Appendix at 24.

       In May 2011, Father filed a Motion to Modify Custody, seeking primary physical

custody of A.B. Prior to the resolution of that motion, the court established a summer

visitation schedule, as Mother had moved too far away to make the previous arrangement

tenable. A hearing was held on Father’s modification petition on August 8. On August 12,

the court granted the petition to modify and awarded primary physical custody to Father.

Relevant portions of the court’s order are set out as follows:

               4.      Both parties and the minor child have resided in Ohio County,
       Indiana throughout the child’s life.
               5.      Mother verbally informed Father on Easter, 2011 that she
       intended to relocate with the child to Nancy, Kentucky, which is
       approximately four (4) hours (and 200 miles) from Father’s residence. Mother
       did relocate with the child at the conclusion of the 2010-2011 school year and
       filed a written Notice of Relocation with the Court on June 13, 2011.
               6.      The stated purpose of Mother’s relocation was to secure
       employment and to be close to her family. Mother, the child and Mother’s
       boyfriend are presently residing in Nancy, Kentucky with the child’s maternal
       grandmother.
               7.      Father continues to reside in Ohio County with his fiancé, Carey
       Nowlin, and her seven (7) year old daughter, both of whom have been in the
       child’s life for approximately three (3) years. Testimony was given that [A.B.]
       has developed a positive and loving relationship with Carey and a sibling-like
       relationship with her daughter.

                                              3
        8.     Since the dissolution of the parties’ marriage, Mother has been
married and divorced again and is now living with a boyfriend of several
months.
        9.     Subsequent to her relocation, Mother obtained employment at
the Wolf Creek Marina earning an hourly wage of $7.25. Prior to obtaining
employment, Mother has not worked outside the home since 2008, testifying
that she relied on child support, unemployment and the income from her prior
husband to support herself and [A.B.]. Mother’s work schedule will allow her
to take their daughter to school every day and be available most evenings with
a third party/relative caring for [A.B.] a few hours after school, two to three
times per week.
        10.    Father is presently employed … and has been so employed for
approximately fourteen (14) years earning an hourly wage of $18.96. His
gross weekly income averages $758.40. Father is providing medical insurance
for the child through his employment at a cost of $11.72 per week. Father
works swing shift and Father will require assistance from his girlfriend and
extended family to care for [A.B.].
        11.    Since the parties’ dissolution of marriage, Father has consistently
exercised his parenting time with [A.B.], increasing that time to include
additional days per week, for several months prior to Mother’s relocation.
        12.    Uncontested evidence was presented that [A.B.] shares a very
close relationship with her paternal grandparents and prior to the relocation
was able to spend time with them on a consistent basis anytime that she was
with Father and at other times.
        13.    Based upon the testimony of Mother, prior to the relocation,
[A.B.] spent time with her maternal grandmother one (1) to two (2) times per
year.
        14.    [A.B.] has been enrolled and attended Ohio County Elementary
School since the commencement of her education. [A.B.] has struggled
academically. She has attended summer school in the past and summer school
was recommended at the conclusion of the past school year; however, Mother
relocated and did not follow through with that recommendation.
        15.    [A.B.’s] community has been centered in and around Rising Sun
throughout her life and she has friends in that community and particularly in
her school environment. Mother testified that [A.B.] has not yet built “many”
friendships in Kentucky.
        16.    [A.B.] has continuously been provided with too much
information regarding issues between the parties, most recently regarding these
legal proceedings, causing her unnecessary emotional distress and anxiety and
allowing her to feel caught between her parents. Mother admitted discussing
court dates and attorney meetings. [A.B.], at the tender age of 10, was
requested by Mother to come to a meeting with Mother and Father to make

                                        4
      arrangements discuss [sic] custody and parenting time. The Court finds this
      very inappropriate.
              17.    After Mother’s relocation, the parties have continued every other
      weekend parenting time but have been unable to continue midweek parenting
      time due to the significant distance in the relocation. …
              18.    Due to Mother’s relocation, Father is incurring significant
      expenses in driving to and from Lexington, Kentucky (the approximate ½ way
      point) to pick up and return his child during weekend parent time. Father
      likewise will be unable to as involved [sic] in school events/extracurricular
      activities with the child.

                                       * * * * *

                                        DECISION

              After giving a great amount of consideration to the evidence presented
      on all of the above the Court NOW FINDS that:

              1.     There has been a substantial and ongoing change in
      circumstances since the issuance of the parties’ Decree of Dissolution of
      Marriage in 2006, including, but not limited to the recent relocation of Mother.
      The details of the finding are found in the findings of fact contained herein.
              2.     Despite Mother believing there is a need to relocate to secure
      employment, she provided insufficient evidence to prove that her new job and
      living arrangement will provide any substantial benefit to the parties’ child.
              3.     Furthermore, it is the opinion of this Court that Mother obtaining
      a job earning the equivalent of minimum wage does not outweigh the child’s
      loss of regular and consistent contact with her father, extended family, friends
      and community.
              4.     Father is in a position to provide [A.B.] with a loving, supportive
      and stable home environment, continuity of contact with her extended family,
      peers, school and community, and emotional and financial support.

Appellant’s Appendix at 23-28. The court went on to award primary physical custody to
Father. Mother contends this decision was an abuse of discretion.




                                              5
                                               1.

       Mother first contends, “The Trial Court had no authority to Order a Provisional

Hearing without a request, and establish Father’s summer visitation.” Appellant’s Brief at i.

The hearing in question was held to resolve custody issues for the summer of 2011, and

accomplished that end. Obviously, that summer has passed. Therefore, we will not address

the propriety of convening the hearing and establishing a summer visitation schedule because

the issue is now moot. See In re Lawrance, 579 N.E.2d 32, 44–45 (Ind. 1991) (holding that

“[a]n appeal becomes moot and should be dismissed when the controversy or dispute

originally existing at the time of the commencement of the action ceases to be a concrete one

requiring settlement, loses its essential character, is no longer live, or the court on appeal is

unable to render effective relief”).

                                               2.

       Mother contends the trial court erred in modifying the original custody order. We

note at the outset that the trial court’s judgment was accompanied by findings and

conclusions. When we review such judgments, 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 to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). Upon appeal, we

will not 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 (Ind. 2011).

“‘Findings are clearly erroneous only when the record contains no facts to support them

either directly or by inference.’” Id. at 502 (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262


                                               6
(Ind. 1997)).

       Appellate deference to the determinations of our trial court judges, especially
       in domestic relations matters, is warranted because of their unique, direct
       interactions with the parties face-to-face, often over an extended period of
       time. 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.

Best v. Best, 941 N.E.2d at 502.

       As a preliminary matter, Mother claims the trial court applied the wrong legal

standard in making its determination. The trial court’s modification order was primarily set

out in terms of the general criteria for modifying an existing custody order under Ind. Code

Ann. § 31-17-2-21 (West, Westlaw through legislation effective March 14, 2012) and I.C. §

31-17-2-8 (West, Westlaw through legislation effective March 14, 2012). Mother contends

this was error and that the court was instead required to apply the two-part test set out in T.L.

v. J.L., 950 N.E.2d 779 (Ind. Ct. App. 2011), pertaining to objections by a non-relocating

parent to the other parent’s motion to relocate a child that is the subject of an existing custody

order. In this case, however, Mother never filed a motion to relocate A.B. It is not

surprising, then, that Father did not file an objection to a non-existent motion to relocate.

T.L. is inapposite in this respect. The only motion before the court was Father’s motion to

modify custody. Mother’s relocation to Kentucky was the “changed circumstance” upon

which this motion was primarily based. Moreover, after the fact, Mother filed a “Notice of

Relocation” informing the court on June 10, 2011 that she had moved with A.B. to Kentucky

approximately ten days before. Thus, Father’s motion to modify custody predated Mother’s


                                                7
notification of relocation. Therefore, the standard of review is that which pertains generally

to motions to modify custody.

       Under I.C. § 31–17–2–21, a court may not modify a child custody order unless

modification is in the child’s best interests and there is a substantial change in at least one of

several factors that a court may consider in initially determining custody. These 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:
              (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....

I.C. § 31–17–2–8. In determining whether modification would be in the child’s best

interests, the court must consider not only those factors specifically enumerated in the statute,

but also any other relevant factors. See Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008).


                                                8
“In the initial custody determination, both parents are presumed equally entitled to custody,

but a petitioner seeking subsequent modification bears the burden of demonstrating the

existing custody should be altered.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).

       If Mother had filed a petition asking permission to relocate with A.B. in Kentucky,

Father could have responded in one of two ways – either to seek an order preventing a

relocation, or to file a motion for change of custody. See Baxendale v. Raich, 878 N.E.2d

1252. I.C. § 31-17-2.2-1(b) (West, Westlaw through legislation effective March 14, 2012)

sets forth the criteria a court should consider when determining whether to permit such

relocation or to modify custody as a result of relocation. Although Mother did not file such a

request, Father’s petition for modification was premised upon her relocation, and the factors

listed in I.C. § 31-17-2.2-1(b) provide useful guidance in considering whether and how a

relocation would impact A.B.’s best interests. Therefore, like the trial court did, we will

assess A.B.’s best interests against the criteria set out in I.C. § 31-17-2.2-1(b), which

provides:

       (b) 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. The court shall take into
       account the following in determining whether to modify a custody order,
       parenting time order, grandparent visitation order, or child support order:

              (1) The distance involved in the proposed change of residence.

              (2) The hardship and expense involved for the nonrelocating individual
              to exercise parenting time or grandparent visitation.

              (3) The feasibility of preserving the relationship between the
              nonrelocating individual and the child through suitable parenting time
              and grandparent visitation arrangements, including consideration of the

                                              9
              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 first factor is the distance involved in the relocation. It was undisputed that

Mother’s relocation to Nancy, Kentucky spanned a distance of approximately 200 miles, and

that the trip from Ohio County to Nancy took approximately 4 hours. This distance is

sufficient to cause a significant change in A.B.’s life with respect to the contact she will have

with the family members in Ohio County, with whom she shares a close relationship and with

whom she is accustomed to spending a significant amount of time. Of course, it will also

necessitate a change in schools and leaving friends behind.

       Under I.C. § 31-17-2.2-1 (b)(2), we consider the hardship and expense involved for

Father and his mother – A.B.’s paternal grandmother - to exercise parenting time or

grandparent visitation, respectively. Again, there was no evidentiary dispute that the distance

between Ohio County and A.B.’s new home posed a hardship on Father and his family in

exercising their visitation rights. Father was required to travel approximately 200 miles,

round-trip, to pick up A.B. from Nancy and take her home to Ohio County, because he and

Mother met approximately halfway to make the exchange. This resulted in the expenditure

                                               10
of considerable time and expense on Father’s part.

       Under Subsection (b)(3), we consider the feasibility of preserving the relationship

between Father and A.B., and between Father’s family and A.B., through visitation

arrangements, and also examine the financial circumstances of the parties. It was undisputed

that Father consistently exercised his allotted visitation time with A.B., which included one

day per week, and even “increased that time to include additional days per week, for several

months prior to Mother’s relocation.” Appellant’s Brief at 24. Moreover, because of the

great distance involved, Father will be unable to be as involved in A.B.’s school and

extracurricular activities as he was before. Because of the great distance involved in the

relocation, Father and his family were no longer able to exercise midweek visitation with

A.B. Finally, because he was required to drive to Lexington, Kentucky to pick up and drop

off A.B., Father incurred significant expenses as a consequence of the trips back and forth,

including fuels costs and wear and tear on his vehicle.

       Under Subsection (b)(4), we consider whether there is an established pattern of

conduct by Mother that either promoted or thwarted Father’s contact with A.B. We can find

no instances in the record indicating that this factor weighs one way or the other.

       Under Subsection (b)(5), we consider the reasons provided by Mother for seeking

relocation and Father’s reasons for opposing relocation. Mother claimed that she moved to

Kentucky to secure employment. After moving, however, Mother was able to obtain what

amounted to only minimum-wage employment. Father was opposed to moving A.B. to

Kentucky because of the significant detrimental impact it had on the amount of time he and


                                             11
his family would be able to spend with her, and he would be unable to play as active a role in

her life as he had before the move. Moreover, A.B. would be forced to move away from her

community at large – the only community she had known. We agree with the trial court that

the type of employment Mother was able to secure did “not outweigh [A.B.]’s loss of regular

and consistent contact with her father, extended family, friends, and community.”

Appellant’s Appendix at 28.

       Finally, under Subsection (b)(6), a court may consider “[o]ther factors affecting the

best interest of the child.” The record reveals that A.B. struggles academically, and that it

was recommended that A.B. enroll in summer school in the summer of 2011, which was the

summer after Mother moved to Kentucky. Mother failed to follow that recommendation.

There is evidence that Father’s life has a stability that Mother’s life lacks. Father has been

dating Nowlin for several years and A.B. has a close relationship with both Nowlin and her

seven-year-old daughter. Mother, on the other hand, has been married and divorced since her

divorce from Father, and was living with another man at the time this appeal was filed.

Father has worked for the same employer for approximately fourteen years and earns almost

$19 per hour, while Mother had worked at a BP in Ohio County until 2008, after which she

lived on unemployment benefits and child support payments.

       Also, the trial court was concerned that Mother was acting “very inappropriate[ly]” in

sharing with A.B. “too much information” regarding the issues between the parties

concerning this custody dispute. Id. at 25. As a final matter, there was evidence that Mother

had failed to vigorously pursue medical treatment for A.B. when A.B. suffered from warts,


                                             12
and that the condition was cured only after Father intervened. There was also evidence that

A.B. had begun orthodontia treatment. Because Mother neglected to take her for several

appointments, the orthodontist cancelled their contract and notified Mother that she should

have the appliances removed from A.B.’s mouth immediately. When Father learned what

had happened, he contacted the provider, scheduled an appointment, and “got it taken care

of.” Transcript at 87. According to Father, A.B. is now “back on track” “to see about

braces.” Id.

       We acknowledge that “[a] custodial parent’s relocation out of state which makes

visitation inconvenient does not in itself warrant child custody modification.” Hanks v.

Arnold, 674 N.E.2d 1005, 1008 (Ind. Ct. App. 1996). In this case, however, there was more

than just Father’s inconvenience at the heart of his request for modification, and which

formed the basis for the trial court’s ruling. The foregoing discussion reflects that A.B. is a

lifelong resident of Ohio County and has friends and extended family there with whom she

has enjoyed close relationships her whole life. The same is not true of Nancy, Kentucky,

where Mother sought to relocate A.B. A.B.’s teachers and tutors in Ohio County are familiar

with A.B.’s particular academic problems and are well situated to address those issues. It

appears that Father had been more diligent than Mother in matters pertaining to A.B.’s

medical issues and needs. The trial court’s findings on these matters are supported by the

evidence presented at the hearing. The findings, in turn, support the trial court’s conclusion

that Mother’s relocation to Kentucky was a significant change of circumstances that

negatively impacted A.B. in several ways. They also support the conclusion that changing


                                              13
the original arrangement and awarding primary physical custody to Father, who remains in

Ohio County, is in A.B.’s best interest. Therefore, the trial court did not abuse its discretion

in granting Father’s request to modify custody and award primary physical custody of A.B.

to him.

       Judgment affirmed.

MAY, J., and BARNES, J., concur.




                                              14
