                                                                     Aug 13 2015, 8:36 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Monty K. Woolsey                                          Mark Small
Cross, Pennamped, Woolsey & Glazier,                      Indianapolis, Indiana
P.C.
Carmel, Indiana                                           Roberta L. Ross
                                                          Ross and Brunner
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

David V. Taylor,                                          August 13, 2015

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A04-1502-DR-58
        v.                                                Appeal from the Marion Superior
                                                          Court
Sheryl Crowder Taylor,                                    The Honorable Heather A. Welch,
Appellee-Petitioner.                                      Judge

                                                          Cause No. 49D01-0402-DR-230
                                                          (moved from 49D12-0402-DR-230)




Najam, Judge.




Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015                    Page 1 of 20
                                          Statement of the Case
[1]   David Taylor (“Father”) appeals the trial court’s retroactive modification of his

      child support payments. He presents one issue for our review, which we revise

      and restate as follows: whether the trial court erred when it modified his child

      support payments retroactively, based on his notice of intent to relocate, before

      either party had filed a petition to modify child support. The trial court held

      that when Father filed notice of intent to move and his petition to modify

      custody, the court was also authorized to modify support. We disagree and

      hold that the retroactive support order was contrary to law because the statute

      requires a party to file a petition to modify a child support order.


[2]   We reverse and remand with instructions.


                                    Facts and Procedural History
[3]   Father married Sheryl Crowder Taylor (“Mother”),1 and two children, M.T.

      and L.T., were born of the marriage (collectively “the children”). Father and

      Mother dissolved their marriage on December 6, 2004, and the trial court

      entered a permanent custody order on March 9, 2007, which provided for joint

      legal and physical custody of the children. On June 20, 2009, the court entered

      a child support order that directed Father to pay child support to Mother in the




      1
          The record does not disclose when the two were married.


      Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015   Page 2 of 20
      amount of $107.82 per week. The June 2009 order remained in effect until the

      current dispute. M.T. is now emancipated, and L.T. is fifteen years old.


[4]   On April 15, 2011, Father filed notice of his intent to relocate from Indianapolis

      to Alabama (“relocation notice”) to pursue an employment opportunity. In the

      relocation notice, Father stated that he “anticipate[d] a change in custody, child

      support[,] and/or child support orders.” Appellant’s App. at 102. The

      relocation notice also contained a statement informing Mother that she “may

      file a petition to modify a custody order, parenting time order, grandparent

      visitation order[,] or child support order.” Id. That same day, Father filed a

      petition to modify child custody with respect to L.T., which requested to

      remove L.T.2 from Indianapolis to Alabama but did not reference—let alone,

      request—a modification of child support. On May 4, 2011, Mother objected to

      Father’s petition to modify child custody, and, concomitantly, she filed an

      emergency petition for a temporary change of custody.3 Neither of Mother’s

      filings requested a modification of child support.


[5]   Father moved from Indianapolis on or before May 4, 2011, but, due to several

      continuances, the parties’ competing petitions remained pending until late




      2
        Throughout the duration of this case, Father’s relationship with M.T. deteriorated completely. On July 21,
      2009, Mother was granted sole physical custody over M.T., and, on September 14, 2011, Mother was also
      granted sole legal custody over M.T. Father was granted parenting time.
      3
          The trial court ultimately determined that no emergency existed.


      Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015                        Page 3 of 20
      2014.4 In the interim, the parties filed several other motions, which included a

      July 13, 2012, unopposed motion by Father to vacate a final hearing date on his

      petition to modify custody (“July 2012 motion”) and a March 6, 2013, motion

      by Mother to, among other things, “Complete Pending Modification of

      Custody and Support” (“March 2013 motion”). Appellant’s App. at 41.


[6]   In his July 2012 motion, Father stated:


              The amount of child support Father should pay is an issue that
              remains to be determined but the support cannot be calculated
              until Father’s parenting time is decided. After the parties agree
              on a parenting schedule with a parenting coordinator, the
              attorneys should be able to do the support calculation. The
              undersigned hopes there will not be the necessity of a further
              hearing on any issue in this case.


      Id. at 112b. The trial court granted Father’s motion.


[7]   In Mother’s March 2013 motion, she stated that, “[o]n or about April 15, 2011,

      [Father] filed a Motion to Modify custody and support as well as an intent to

      move.” Id. at 113. Thus, Mother asked the court to calculate “the amount of

      past due support.” Id. In response to Mother’s motion, on July 15, 2013,

      Father filed a motion to dismiss, in which he declared:

              4. . . . [N]either party has filed a request to modify child support.



      4
        In June 2011, the parties mediated the issue and reached a partial agreement, but that agreement is not
      contained in the record. In December 2013, the court issued a temporary order that gave Father parenting
      time over L.T., and at a hearing on all pending matters, held on August 11 and 12, 2014, Husband indicated
      that he no longer requested a transfer of physical custody of L.T. to him.

      Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015                       Page 4 of 20
              5. On April 15, 2011, Father filed his Notice of Intent to Move[,]
              in which he noted that Mother “may file a petition to modify a
              custody order, parenting order, grandparent visitation order, or a
              child support order.”

              6. Also on April 15, 2011, Father filed his Verified Petition for
              Modification of Custody. No where [sic] in this request for a
              modification of custody [is] a request to modify child support.

              7. Mother has never filed a petition to modify child support.

                                                       ***

              9. As such, to the extent that Mother’s March 6, 2013[,] petition
              requests a modification of child support effective at any time
              prior to August 2013, Father believes that that request ought to
              be dismissed as constituting a[n improper] request for retroactive
              modification of child.


      Id. at 116.


[8]   On August 5, 2013, Mother objected to Father’s motion to dismiss. In support,

      Mother highlighted that, in his relocation notice, Father stated that he

      “anticipate[d] a change in custody, child support, and/or parenting time due to

      this move.” Id. at 118. Mother also emphasized the statement Father made in

      his July 2012 motion that “[t]he amount of child support Father should pay is

      an issue that remains to be determined . . . [.]” Id. at 120. As such, Mother

      asserted:




      Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015    Page 5 of 20
        1. The most recent matters before this court were precipitated by
        [Father’s] Notice of Intent to Move and Petition to Modify
        Custody filed April 15, 2011.

                                                 ***

        3. By [Father’s] own pleading[s], the matter of support is before
        this court as of April 15, 2011.

                                                 ***

        5. Simultaneous with the Notice of Intent to Move, [Father] filed
        his Petition to Modify Custody. In so doing, he triggered the
        hearing that required the court to address the issues of custody,
        support[,] and visitation.

        6. Thereafter, [Mother] filed a Verified Emergency Petition for
        Temporary Change of Custody and Objection to Move of Child
        on May 4, 2011. Again, this triggers a requirement for a hearing
        in which 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.”

                                                 ***

        10. . . . [Father] alleges that[,] absent [Mother] filing a redundant
        modification of support based upon the mandatory duty placed
        on this court by [Indiana Code Section] 31-17-2.2-1, the Court
        cannot and should net ever consider the effect of a move out of
        State on an existing child support order. That being the case, the
        entire statute must be ignored and the matter of [Father] moving
        cannot be taken into consideration by this court in any future
        hearings.

                                                 ***



Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015    Page 6 of 20
              13. Notice of Intent to Move[,] by its very nature[,] is a Petition
              to Modify all present circumstances based upon a substantial
              change of circumstances for a party[,] which, by its very nature,
              renders the [March 2007 custody] order inappropriate.


      Id. at 118, 120-22. The trial court agreed with Mother and denied Father’s

      motion to dismiss. In so doing, the court concluded, “The matter of support

      was properly placed before this court by [Father on] April 15, 2011[,] and shall

      be heard with all other matters in January 2014.” Id. at 124.


[9]   The January 2014 hearing was continued and, ultimately, was held over the

      course of August 11, August 12, and September 15, 2014. At the hearing, the

      parties presented evidence of their respective incomes from 2011 onward. On

      November 5, 2014, the trial court entered a thorough “Order on All Pending

      Motions.” Id. at 57. In the order, the trial court noted:


              Mother and Father’s attorneys agreed that the Father’s
              overnights changed when he moved to Alabama . . . and that the
              split physical custody arrangement was no longer being executed
              by the Mother and Father due to the distance.

                                                       ***

              From May 4, 2011 through August 31, 2013 . . . [t]he Court finds
              that the Mother ha[d] a[n average] gross weekly income of
              $1,213.79. For this same time period, the Court finds the Father
              ha[d] a[n average] gross weekly income of $3,090.50. . . . This is
              the time period when both [M.T.] and [L.T.] resided at home and
              Father had moved to Alabama. The average number of
              overnights from 2011, 2012, and 2013 is 58 for Father. . . .
              Therefore, the Father shall pay child support from May 4, 2011[,]
              through August 30, 2013[,] in the amount of $327.00. . . .

      Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015      Page 7 of 20
               From August 31, 2013[,] to August 6, 2014, the Court finds that
               the Mother ha[d] a[n average] gross weekly income of $1,110.47
               and the Father ha[d] a[n average] gross weekly income of
               $3,337.83. . . . This is when [M.T.] was living away from home
               and in college before she was emancipated. The Court hereby
               orders the Father to pay child support in the amount of
               $274.00. . . . The Court finds that the Father is entitled to 66-70
               overnights. . . .

               From August 7, 2014, forward the Court finds the Mother has a
               gross weekly income of $1,099.54 and the Father of $3,366.01.
               The Father is entitled to 73 overnights. The Court hereby orders
               that the Father pay child support in the amount of $235.00. . . .

                                                        ***

               . . . [T]he Court finds that the Father’s [c]hild support arrearage
               as of August 7, 2014[,] was $21,317.75. The Court hereby orders
               the Father to pay $250.00 per week toward the arrearage
               beginning November 7, 2014. . . .


       Id. at 80-85.


[10]   After the trial court issued its order, Father filed a motion to correct error. In

       relevant part, Father alleged that the court’s modification of his child support

       payments retroactive to May 4, 2011, was contrary to law because no party had

       filed a petition to modify child support and, therefore, no party had placed the

       issue of child support before the court at that time. On January 13, 2015, the

       court denied the husband’s motion and, in so doing, stated:


               Father was no longer permanently living in Indianapolis as of
               May 4, 2011[,] and did not maintain the split custody

       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015      Page 8 of 20
               arrangement as he ha[d] previously[,] where [L.T.] would spend
               one week with his Mother and one week with his Father. Thus,
               it would be unfair to reward a parent for moving far away from
               his/her children, exercising less parent[ing] time and not
               fulfilling a joint custody arrangement, and then prohibit
               modification of child support back to when such change in
               circumstances [occurred]. This is not in the best interest[s] of the
               minor children. In this case, Indiana law[,] under the relocation
               statute[,] provides the Court with the authority to modify a . . . child
               support order. This Court utilized this statutory authority to properly
               modify the Father’s child support and make it effective May 4, 2011[,]
               based on all the evidence presented.


       Id. at 146 (emphasis added). This appeal ensued.


                                       Discussion and Decision
[11]   Father argues that the trial court erred when it modified his child support

       payments retroactive to May 4, 2011. “Decisions regarding child support rest

       within the sound discretion of the trial court.” Haley v. Haley, 771 N.E.2d 743,

       752 (Ind. Ct. App. 2002). Thus, we reverse child support determinations only if

       the trial court abused its discretion or made a determination that is contrary to

       law. Id. “A trial court has the discretionary power to make a modification for

       child support relate back to the date the petition to modify is filed, or any date

       thereafter.” Id. A “retroactive modification of support is erroneous only if the

       modification purports to relate back to a date earlier than that of the petition to




       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015       Page 9 of 20
       modify.”5 Carter v. Dayhuff, 829 N.E.2d 560, 567 (Ind. Ct. App. 2005) (quoting

       Reeves v. Reeves, 584 N.E.2d 589, 594 (Ind. Ct. App. 1992), trans. denied). “This

       rule serves to avoid encouragement of dilatory tactics and further the purposes

       of the changed circumstances rule.” Smith v. Mobley, 561 N.E.2d 504, 508 (Ind.

       Ct. App. 1990), trans. denied.


[12]   Indiana’s relocation statute requires a “relocating individual” to “file a notice of

       the intent to move” with the appropriate court and with the “nonrelocating

       individual.” Ind. Code § 31-17-2.2-1(a). In addition to changes in personal

       information wrought by the relocation, the relocation notice must contain “[a]

       statement that a nonrelocating individual may file a petition to modify a

       custody order, parenting time order, grandparent visitation order, or child

       support order.” I.C. § 31-17-2.2-3. And, “[u]pon 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.” I.C. § 31-17-2.2-1(b). “The purpose of this notice is . . . to provide the

       means for the trial court to modify visitation and support orders that may

       become unreasonable due to a long distance move by the custodial parent.”

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


[13]   Here, it is undisputed that, prior to March 6, 2013, neither Father nor Mother

       had filed a petition to modify child support. In Father’s relocation notice, he



       5
         Retroactive modification is permitted in two circumstances, but those circumstances are not relevant here.
       See Becker v. Becker, 902 N.E.2d 818, 820 n.4 (Ind. 2009).

       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015                        Page 10 of 20
       stated that he “anticipate[d] a change in . . . child support,” but he did not

       request a modification of that support. Appellant’s App. at 102. Instead, as the

       relocation statute requires, Father alerted Mother that she could file such a

       motion. See I.C. § 31-17-2.2-3(a)(2)(H). Similarly, although Father filed a

       petition to modify custody in conjunction with his relocation notice, Father,

       again, did not request a modification of child support. Neither did Mother

       request a modification of child support in her objection to Father’s petition to

       modify custody or in her emergency petition for a temporary change of custody.

       And, finally, although Father acknowledged in his unopposed July 2012

       motion that child support was an issue that needed to be determined in the

       future, Father did not ask the trial court to make that determination. Rather,

       Father indicated that he hoped to reach an agreement with Mother regarding

       parenting time and child support without further court intervention.


[14]   Thus, the first motion filed by either party that could be construed as a petition

       to modify child support came on March 6, 2013, in the form of Mother’s

       motion to “Complete Pending Modification of Custody and Support.”

       Appellant’s App. at 113. Despite this, the trial court modified Father’s child

       support payments retroactive to May 4, 2011, the date that Father had left

       Indiana and, in the absence of a court order, that the parties had sua sponte

       modified the physical custody arrangement. In so doing, the trial court stated

       that the relocation statute provided it with the statutory authority to make the

       retroactive child support modification. In other words, the trial court

       determined that Father’s relocation notice, even in the absence of a petition to


       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015   Page 11 of 20
       modify child support, gave the court the power to modify Father’s child support

       effective the date of his relocation notice.


[15]   In this appeal, Father asserts that the trial court erred as a matter of law when it

       applied the relocation statute in this manner, and, therefore, he states that our

       standard of review is de novo. In contrast to the trial court’s order, Father

       argues that Mother’s March 6, 2013, motion is the first date that either party

       effectively petitioned to modify child support and, consequently, “is the most

       remote date the trial court could arguably use when making a retroactive child

       support modification in this case.” Appellant’s Br. at 9.


[16]   Mother, however, disputes that the trial court erred as a matter of law when it

       modified Father’s child support, and, moreover, Mother even challenges that

       our standard of review in this appeal is de novo. In this regard, she contends

       that the correct standard of review is abuse of discretion and complains that

       Father failed to provide a transcript of evidentiary hearings and an adequate

       record to support his appeal. Mother alleges that the missing transcript would

       show that Father waived any objection to the child support order and that he is

       also estopped to complain about it.


[17]   But if Mother believed the record provided by Father on appeal was

       inadequate—and that a more complete record would show that Father failed to

       object and, therefore, waived any objection to an order modifying child

       support—Mother could have supplemented the record. See Ind. Appellate

       Rules 9(G) & 49(A). Instead, Mother asks us to make that determination


       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015   Page 12 of 20
       without providing a record to support it. And Husband’s appeal is based on

       Mother’s alleged failure to petition for a modification of trial support, and the

       record shows that Mother did not place the issue of child support before the

       trial court until March 6, 2013.


[18]   Thus, we agree with Father that we are faced with an issue of statutory

       interpretation: we must determine whether a statutorily-required relocation

       notice, without further motion by any party, also places the issue of child-

       support modification in front of the trial court for its determination.

       “Generally, statutory interpretation is a question of law and determinations in

       that regard are subject to de novo appellate review.” Higgins v. State, 855

       N.E.2d 338, 341 (Ind. Ct. App. 2006). Because we agree with Father that the

       trial court’s child-support determination was contrary to law, we reverse. See

       Haley, 771 N.E.2d at 752.


[19]   There is no question that, in addition to the relocation notice itself, our

       relocation statute anticipates and also requires the filing of a petition to modify

       child support before the trial court has the authority to modify a child support

       order. Indeed, Indiana Code Section 31-17-2.2-3(a)(2)(H) requires that the

       relocation notice itself provide notice to the nonrelocating individual that she

       “may file a petition to modify a custody order . . . or child support order.”

       Even more telling, Section 31-17-2.2-1(b) states, “Upon motion of a party, the

       court shall set the matter for a hearing to review and modify, if appropriate, a

       custody order . . . or child support order.” (Emphasis added.) While the

       purpose of a relocation notice is “to provide the means for the trial court to

       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015   Page 13 of 20
       modify visitation and support orders that may become unreasonable due to a

       long distance move by the custodial parent,” Fridley, 748 N.E.2d at 941, the

       filing of a motion is a procedural prerequisite that must be satisfied before the

       court may modify a support order under the statute, cf. Fight Against Brownsburg

       Annexation v. Town of Brownsburg, ___ N.E.3d ___, 2015 WL 2328736, at *3-6

       (Ind. Ct. App. May 15, 2015) (explaining that, although a court has subject

       matter jurisdiction over a given issue, the parties must still satisfy certain

       procedural prerequisites to state a claim). A relocation notice is, in itself,

       insufficient to trigger consideration of a child support modification.6 Here, the

       trial court erred as a matter of law when it concluded that, without such a

       motion from either party, Father’s relocation notice gave the court the authority

       to modify the existing child support order retroactive to May 4, 2011, the date

       Father was no longer living in Indianapolis.


[20]   The parties’ competing petitions to modify child custody also did not place

       modification of child support in front of the court. The two issues, while

       frequently related, are distinct and are treated as such by our Code. Compare

       I.C. §§ 31-16 (governing the “Support of Children and Other Dependents”) with

       I.C. §§ 31-17 (governing “Custody and Visitation Rights”). Indeed, the




       6
         The dissent characterizes our interpretation of the relevant statutes as “overly technical.” We think not.
       The relocation notice does not, in itself, trigger consideration of child support. The text of the statute requires
       that a child support modification be requested by a party. This is not a technicality but a statutory
       requirement. We cannot ignore the plain meaning of a statute where the legislature has spoken clearly and
       unambiguously on the point in question. See Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc., 746
       N.E.2d 941, 947 (Ind. 2001).

       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015                            Page 14 of 20
       relocation statute is written in the disjunctive; it speaks of motions by a party to

       modify child custody or child support. See I.C. §§ 31-17-2.2-1(b), 31-17-2.2-

       3(a)(2)(H). Our reading of the relocation statute also comports with prior case

       law. In this regard, we find instructive this court’s opinion in Smith v. Mobley,

       561 N.E.2d 504 (Ind. Ct. App. 1990), trans. denied.


[21]   In Smith, the trial court ordered Smith, the mother, to pay child support to

       Mobley, the father. On January 3, 1989, Smith filed a relocation notice, and,

       on January 20, Mobley filed a petition to modify custody. Id. at 505, 508.

       Subsequently, on February 24, Smith lost her job, and she had no income after

       March 10. Id. at 508. On March 22, Smith sent a letter to the trial court

       “indicating that she was unemployed and asking whether she could have her

       support payments reduced.” Id. The trial court took Smith’s letter under

       advisement and subsequently held a hearing. Id. On September 29, the trial

       entered a modification decree, in which the court modified Smith’s child

       support payments effective that same day. Smith appealed and argued that “the

       trial court erred in failing to make the reduction in her support payments

       retroactive to the time at which she became unemployed.” Id. at 507.


[22]   This court agreed with Smith and reversed the trial court. Id. at 508. However,

       on remand, we did not instruct the trial court to make Smith’s reduced

       payments effective February 24, the date Smith lost her job, which was after

       Smith had filed her relocation notice and Mobley had filed his petition to

       modify custody. Instead, we construed the March 22 letter that Smith had sent

       to the trial court to be a petition to modify child support payments, and we

       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015   Page 15 of 20
       instructed the trial court to make the reduction of Smith’s child support

       payments effective as of the date of that letter. Id. at 508. Notably, the letter

       “ask[ed] whether [Smith] could have her support payments reduced,” and “it

       signaled to the court an apparent significant and continuing change in

       circumstances warranting a modification of the previous support order.” Id.; see

       also I.C. § 31-16-8-1(b)(1) (stating that a child support order may be modified

       “upon a showing of changed circumstances so substantial and continuing as to

       make the terms unreasonable”).


[23]   The decision in Smith is significant. If a relocation notice, by itself, were

       sufficient to place the issue of child support in front of a trial court, then in

       Smith this court could have instructed the trial court on remand to make the

       modification of Smith’s child support retroactive to the date she lost her job,

       February 24. That date was after Smith had filed her relocation notice, and “[a]

       trial court has the discretionary power to make a modification for child support

       relate back to the date the petition to modify is filed, or any date thereafter.”

       Haley, 771 N.E.2d at 752. Similarly, if a motion to modify child custody, even

       when considered together with a relocation notice, also gave a trial court the

       power to modify child support, we could have again instructed the trial court to

       make the modification retroactive to the date Smith lost her job because Smith

       lost her job after Mobley had filed a motion to modify child custody. We did

       not do so. In contrast, and tellingly, we construed Smith’s March 22 letter to be

       a petition to modify child support and instructed the trial court to make the

       modification to Smith’s support payments retroactive only to that day.


       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015    Page 16 of 20
[24]   Neither a relocation nor a change in child custody requires a child support

       modification. Both the Smith decision and our reading of the relocation statute

       comport with this understanding. Therefore, after a relocation notice is filed, if

       a party seeks a modification of an existing child support order that party must

       also file a petition to modify child support. A motion that makes other requests

       but does not expressly request a modification of child support is insufficient to

       place the issue of child support before the trial court for its modification. The

       statute unambiguously requires a “motion of a party.” I.C. § 31-17-2.2-1.

       Here, again, the first motion to request a modification of child support was filed

       by Mother on March 6, 2013. As such, the trial court’s order modifying

       Father’s child support obligation retroactive to May 4, 2011, was an abuse of

       discretion. See Carter, 829 N.E.2d at 567.


[25]   On April 15, 2011, when Father filed his relocation notice, as required by

       statute he notified Mother that she could file a petition to modify child support.

       It was not until March 6, 2013, that Mother filed a motion that could be

       construed as a petition to modify child support. While Father anticipated a

       possible modification of his child support payments, anticipation is not

       equivalent to the petition and actual notice required before the issue can be

       litigated. There is no evidence in the record before us that Husband waived or

       acquiesced in a retroactive child support order. Thus, we reverse and remand

       with instructions to the trial court to recalculate Father’s arrearage from March

       6, 2013.


[26]   Reversed and Remanded.

       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015   Page 17 of 20
FRIEDLANDER, J., concurs.

BAKER, J., dissents with separate opinion.




Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015   Page 18 of 20
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       David V. Taylor,                                          Court of Appeals Case No.
                                                                 49A04-1502-DR-58
       Appellant-Respondent,

               v.

       Sheryl Crowder Taylor,
       Appellee-Petitioner.




       Baker, Judge, dissenting.

[27]   I respectfully dissent. In my view, the majority’s interpretation of the statutes at

       issue is overly technical. When Father filed his initial motion to modify child

       custody, he indicated his intent to move out of state and to seek custody of L.T.

       Prior to that time, the parties shared joint legal and physical custody of both

       children. Father’s initial motion indicated that he anticipated a change in

       custody and/or child support. All of these factors, together, served to put the

       parties and the trial court on notice that child support was an issue. Moreover,

       that would logically be the case, given the dramatic changes in custody and

       geographical location that would occur if Father’s motion was granted.




       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015              Page 19 of 20
[28]   As the majority notes, the purpose of the statutorily required notice is “to

       provide the means for the trial court to modify visitation and support orders

       that may become unreasonable due to a long distance move by the custodial

       parent.” Fridley v. Fridley, 748 N.E.2d 939, 941 (Ind. Ct. App. 2001). In this

       case, the trial court was aware that Father intended to relocate from Indiana to

       Alabama and that Father was seeking physical custody of L.T. Clearly, the

       parties’ existing child support arrangement would need to be modified,

       notwithstanding the fact that neither party filed a motion to modify until March

       6, 2013. Under these circumstances, I believe that the trial court was correct to

       order that Father’s modified child support obligation was retroactive to May 4,

       2011. Therefore, I would affirm the trial court and respectfully dissent from the

       result reached by the majority.




       Court of Appeals of Indiana | Opinion 49A04-1502-DR-58 | August 13, 2015   Page 20 of 20
