MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any
court except for the purpose of establishing                          Nov 16 2017, 6:29 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Darlene R. Seymour                                      David E. Baum
Ciyou & Dixon, P.C.                                     David E. Baum Law Office, P.C.
Indianapolis, Indiana                                   Chesterton, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Marriage of                                  November 16, 2017
S.B.,                                                   Court of Appeals Case No.
Appellant-Petitioner,                                   64A03-1706-DR-1185
                                                        Appeal from the Porter Superior
        v.                                              Court
                                                        The Honorable Roger V. Bradford,
J.B.,                                                   Judge
                                                        The Honorable Mary A. DeBoer,
Appellee-Respondent
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        64D01-1303-DR-2181



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017       Page 1 of 17
[1]   This is the second time this Court has had occasion to consider the contentious

      custody arrangement between S.B. (Mother) and J.B. (Father). After the first

      appeal, we remanded to the trial court with instructions to engage in required

      statutory analysis. It did so and arrived at the same result, awarding physical

      custody of the parties’ child to Father and denying Mother’s request to relocate

      with the child. Mother now appeals, arguing that the trial court did not comply

      with our directive and that the evidence does not support its order. Finding that

      the trial court adeptly complied with our instructions and that the evidence is

      sufficient, we affirm.


                                                    Facts
[2]   The underlying facts, as described by this Court in the first appeal involving

      these parties, are as follows:


              Mother and Father were married, and one child, B.B., was born
              of the marriage on May 27, 2010. Their marriage was dissolved
              on August 7, 2014. As part of its dissolution order, the
              dissolution court incorporated an agreement reached during
              mediation by the parties regarding custody and parenting time
              (the Mediation Agreement). In relevant part, the Mediation
              Agreement provides as follows:


                  • Mother and Father would have joint legal custody of B.B.
                  • Although the Mediation Agreement does not include a specific
                    agreement regarding physical custody of B.B., it implied that B.B.
                    would live with Mother and stated that Father would have
                    parenting time every other weekend and one weeknight per week.
                    Father also provided childcare to B.B. during Mother’s weekday
                    work hours.


      Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017   Page 2 of 17
            • Father agreed to pay child support based upon an assumption that
              he would exercise 140 overnights with B.B. annually.
            • The Indiana Parenting Time Guidelines would govern division of
              holiday parenting time, and “Mother shall be classified as the
              custodial parent for the purpose of interpreting said guidelines, and
              for that purpose only.” Appellant’s App. p. 35.
            • The parties agreed that the “parenting time schedule shall remain
              in effect through the date the parties’ minor child commences
              kindergarten at which time the parties shall restructure parenting
              time to effectuate an equal division of the same based on the
              child’s school schedule.” Id.

        In September 2014, Mother began searching for a more
        affordable home. She found a suitable option in North Judson,
        where Mother’s parents lived, which was approximately twenty-
        five miles from her prior residence.


        In December 2014, Father made a feces shape out of Play-Doh,
        placed it so that it appeared to be coming out of B.B.’s bottom,
        took a picture of the event, and posted it to Facebook. Mother
        saw the picture, became alarmed, and contacted the Department
        of Child Services (DCS). She refused to permit Father to exercise
        his parenting time until DCS completed its investigation and
        report. [Footnote 1] On December 19, 2014, Father filed
        pleadings with the court regarding the denial of his parenting
        time. The trial court issued a temporary restraining order
        requiring Mother to provide Father with his parenting time and a
        citation for contempt of court the same day.


                [Footnote 1] DCS found that the allegations of abuse or
                neglect were unsubstantiated and no criminal charges were
                filed against Father as a result of the incident.


        On January 7, 2015, Mother filed a notice of intent to relocate
        and a petition to modify parenting time based on the Play-Doh

Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017   Page 3 of 17
              incident. On February 23, 2015, Father filed a motion for an
              order to prevent the relocation of B.B. and a petition to modify
              custody, parenting time, and child support.


      In re the Marriage of S.B., No. 64A03-1603-DR-533, at *1-*2 (Ind. Ct. App. Dec.

      20, 2016) (“S.B. I”), trans. denied. Following an evidentiary hearing, the trial

      court awarded physical custody to Father. Mother appealed and we reversed

      and remanded, finding that the trial court had not applied required statutory

      factors. On remand, we directed the trial court to (1) apply the burden-shifting

      provision found in Indiana Code section 31-17-2.2-5 to Father’s motion to

      prevent B.B.’s relocation; and (2) apply and analyze all factors found in Indiana

      Code section 31-17-2.2-1(b) with respect to Father’s motion to modify custody

      and parenting time. Id. at *5-*6.


[3]   Following this Court’s remand to the trial court, on May 5, 2017, the trial court

      issued a new order. After engaging in a lengthy analysis and addressing all

      required factors, the trial court ended up in the same place—it ordered that B.B.

      is not to relocate with Mother, that Father is to have sole physical custody of

      B.B., and that the parents will continue to share joint legal custody. Mother

      now appeals.


                                   Discussion and Decision
[4]   Mother argues that the trial court’s order did not comply with this Court’s

      directive in the first appeal. She also appears to argue that even if the trial

      court’s findings are compliant, the evidence does not support the trial court’s

      conclusions. In reviewing the trial court’s order, we first determine whether the
      Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017   Page 4 of 17
      evidence supports the findings; and second, whether the findings support the

      judgment. Harris v. Harris, 800 N.E.2d 930, 934-35 (Ind. Ct. App. 2003). But

      we owe no deference to the trial court’s conclusions of law and will review

      those conclusions de novo. Id. at 935. We will reverse only if the trial court’s

      order is clearly erroneous. Id.


[5]   As we explained in the first appeal:


              If a parent intends to relocate, she must file a notice of her intent
              to move with the court that issued the custody or parenting time
              order already in place. Ind. Code § 31-17-2.2-1(a). In response,
              the non-relocating parent may file a motion seeking a temporary
              or permanent order to prevent the relocation of the child. I.C.
              § 31-17-2.2-5. In many cases, one or both parents will also file a
              petition to modify custody and/or parenting time as a result of
              the relocation. In ruling on a petition to modify in the context of
              a relocating parent, the trial court “shall” take the following
              factors into consideration:


                      (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 financial circumstances of the parties.



      Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017   Page 5 of 17
                (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) (emphasis added). . . . [There is also] a
        statutory burden-shifting analysis required when a motion
        seeking an order to prevent the relocation of a child is filed:


                (c)      The relocating individual has the burden of proof
                         that the proposed relocation is made in good faith
                         and for a legitimate reason.


                (d)      If the relocating individual meets the burden of
                         proof under subsection (c), the burden shifts to the
                         nonrelocating parent to show that the proposed
                         relocation is not in the best interest of the child.




Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017   Page 6 of 17
               I.C. § 3-17-2.2-5.[1]


      S.B. I, at *3-*4.


[6]   First, the trial court considered the distance involved in the proposed change of

      residence. It found that before Mother’s relocation, she and Father lived

      approximately twenty minutes away from each other; afterwards, they lived

      approximately forty-five minutes away from each other. The evidence supports

      this finding, and we also note that Mother works, Father lives and works, and

      B.B. goes to school, in Valparaiso, which is forty-five minutes away from

      Mother’s new residence in North Judson.


[7]   Second, the trial court considered the hardship and expense involved for Father

      to exercise parenting time if relocation occurred. The trial court found as

      follows:


               a.       Prior to Mother’s relocation to North Judson, Indiana,
                        Father had very little to no hardship or expense to exercise
                        parenting time with [B.B.] Because the parties lived in
                        such close proximity to each other before Mother moved,
                        picking up and dropping off [B.B.] for parenting time was




      1
[1]     With respect to the burden-shifting analysis, the trial court found before the first appeal that Mother
      established that her proposed relocation was made in good faith and for a legitimate reason. We directed the
      trial court to conduct the second step of the analysis, meaning that it should consider whether Father showed
      that the proposed relocation is not in B.B.’s best interests. The trial court considered this portion of the
      analysis as part of its general consideration of B.B.’s best interests. We will follow suit and consider it below.



      Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017             Page 7 of 17
                easy and inexpensive. Mother delivered [B.B.] to Father’s
                house on her way to work and picked him up after work.


        b.      Mother proposes that she be allowed to relocate with
                [B.B.] to North Judson on a permanent basis and that she
                be awarded primary physical custody of [B.B.]


                i.       In this scenario, Mother also proposes that maternal
                         grandfather . . . be the individual who gets [B.B.] off
                         to school and who is there to receive [B.B.] at the
                         end of the school day. Grandfather would also
                         provide the after school care . . . until Mother
                         returns home from work at approximately 5:15 p.m.


                ii.      Mother believes that if Father wants to exercise
                         parenting time with [B.B.] every day, he can drive
                         to North Judson each day to do so. This would
                         involve Father driving 45 minutes (in good weather)
                         each way to spend the same or similar time with
                         [B.B.] after school. It would be impractical for
                         Father to have the time he currently has with [B.B.]
                         before school.


                iii.     The cost and hardship to Father would increase
                         drastically if Father had to drive to North Judson
                         and back every day . . . .


        c.      Awarding Father primary physical custody of [B.B.]
                would allow him to preserve the same level of parenting
                time to which both he and [B.B.] have become
                accustomed. Additionally, since Mother works in Porter
                County within minutes of Father’s residence, the burden
                upon her to exercise her parenting time with [B.B.] before
                and after school (before work and after work for Mother) is


Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017   Page 8 of 17
                      much less disruptive to all involved than Mother’s
                      scenario.


      Appealed Order p. 6-7. The evidence in the record supports these findings.


[8]   Third, the trial court considered the feasibility of preserving the relationship

      between Father and B.B. if relocation occurred. The trial court found as

      follows:


              a.      . . . Both parties have the financial resources to exercise
                      parenting time with [B.B.] regardless of which parent is
                      awarded custody.


              b.      However, the feasibility of preserving the relationship
                      between Father and [B.B.] through suitable parenting time
                      has already become alarmingly problematic . . . and it
                      concerns the Court that it will continue to cause issues if
                      Mother is permanently allowed to relocate with [B.B.] 45
                      minutes away from Father.


              c.      Mother has made it clear that she wants Grandfather to be
                      the constant in [B.B.’s] life. She wants him to serve in a
                      much larger role than Father by acting as the daycare
                      provider before and after school each day.


              d.      Since Mother decided that she needed to relocate to North
                      Judson, Grandfather has repeatedly accused Father of not
                      parenting [B.B.] adequately. Grandfather’s behavior does
                      not engender a sense of “preserving the relationship
                      between Father and [B.B.]” . . . Mother has done little to
                      quell Grandfather’s behavior.




      Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017   Page 9 of 17
              e.      Finally, Mother’s own stream of accusations—including
                      the false allegations of sexual misconduct she made against
                      Father—demonstrated the lengths she would go to cut
                      Father out of [B.B.’s] life.


      Id. at 7-8. The evidence in the record supports these findings.


[9]   Fourth, the trial court considered whether there is an established pattern of

      conduct by Mother to thwart Father’s contact with B.B. The trial court found

      as follows:


              a.      In December of 2014, Grandfather, the individual whom
                      Mother wanted as the “constant” in [B.B.’s] life, began
                      hurling accusations at Father about his parenting of [B.B.]


                      i.       Grandfather alleged Father was not feeding [B.B.]
                               properly.


                      ii.      He alleged Father did not clothe [B.B.] adequately
                               which caused [B.B.] to get sick.


                      iii.     Grandfather claimed that only Grandfather could
                               take proper care of [B.B.]


                      iv.      When Father stopped forfeiting his own parenting
                               time to allow Grandfather to have time with [B.B.],
                               Grandfather stated, “. . . one way or another, I’m
                               going to see my grandchild.”


              b.      One week after Grandfather made that statement, Mother
                      contacted DCS alleging:



      Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017 Page 10 of 17
                i.       Father was not making [B.B.] use the car seat.


                ii.      Father was allowing [B.B.] to drive on I-9.


                iii.     Father’s dog was aggressive and biting [B.B.]


                iv.      Father made Play-Doh feces and photographed it
                         coming out of [B.B.’s] pants and posted it on
                         Facebook.


                v.       Father painted profanity on the walls of his home.


        c.      After DCS investigated Mother’s allegations and found
                them unsubstantiated, Mother failed to allow Father to
                resume his parenting time with [B.B.] Mother claimed the
                DCS hotline staff member told her not to allow Father to
                have parenting time . . . ; however, the DCS
                caseworker . . . indicated that when a case is
                unsubstantiated, they encourage parents to abide by any
                custody/parenting time orders that are in place. The
                caseworker stated that Mother was upset the allegations
                against Father were unsubstantiated. The caseworker also
                testified that Mother hung up on her.


        d.      . . . Mother [also reported] her allegations against Father
                to [law enforcement]. Mother claimed [a lieutenant] told
                her not to let Father have [B.B.] for parenting time.


        e.      Mother claimed someone at the prosecutor’s office told her
                not to allow Father to have parenting time with [B.B.]


        f.      Despite DCS finding the matter unsubstantiated and the
                police investigation being concluded (without any action


Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017 Page 11 of 17
                toward Father), Mother continued to deny Father’s
                parenting time.


        g.      Even after this Court ordered her to resume Father’s
                parenting time, Mother refused to do so. Father had to
                seek the assistance of law enforcement to enforce the
                Court’s parenting time order.


                                                ***


        j.      Since Mother wanted to have primary physical custody of
                [B.B.] and have Grandfather serve as the “constant” in
                [B.B.’s] life, Mother has also accused Father of [five
                separate instances of neglect].


        k.      Mother has shown herself to be inflexible in compromising
                with Father or in attempting to resolve her concerns with
                Father.


                                                ***


        m.      . . . [Two law enforcement officers and a DCS caseworker]
                expressed their frustration to the GAL about the manner
                in which Mother was handling the situation—not allowing
                Father parenting time despite the investigations being
                concluded.


        n.      On the other hand, from the time the parties divorced until
                Mother and Grandfather began accusing Father of neglect,
                Father shared his parenting time with Grandfather to keep
                the relationship between [B.B.] and Grandfather intact. . . .
                This demonstrates to the Court Father’s willingness to
                include not only Mother but her family in [B.B.’s] life.


Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017 Page 12 of 17
               o.      Father has also been willing to forego his parenting time
                       with [B.B.] at Mother’s request if Mother wanted to have
                       [B.B.] for a special occasion.


       Id. at 8-11. The evidence in the record supports these findings.


[10]   Fifth, the trial court considered Mother’s reasons for relocating and Father’s

       reasons for opposing the relocation. Mother wanted to relocate because her

       “lease had expired on her residence, her roommate had moved away, and the

       rent was going to increase to an extent that Mother could not afford.” Id. at 11.

       Father opposed the relocation for the following “well-founded” reasons:


               a.      Father spent the majority of [B.B.’s] waking hours with
                       him. Since [B.B.] was an infant, Father fed him and cared
                       for him.


                                                       ***


               c.      Father does not believe it is best for [B.B.] to suddenly
                       have grandfather take over Father’s role as a caretaker on
                       a day-to-day basis.


               d.      It seems illogical to enroll [B.B.] in a school in North
                       Judson that is 45 minutes away from Mother[’s place of
                       employment] and Father when Father lives approximately
                       10 minutes from the . . . [s]chool [B.B.] would attend [if he
                       remained with Father] and Mother works nearby.


               e.      Father is available to provide all the care [B.B.] needs
                       before and after school. Because Father is self-employed
                       and has very flexible hours, Father is available to care for


       Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017 Page 13 of 17
                       [B.B.] every day. The parties do not need Grandfather to
                       serve in that capacity.


       Id. at 12. The evidence in the record supports these findings.


[11]   Finally, the trial court considered the best interests of B.B. The trial court

       found that Father met his burden of showing that a permanent relocation of

       B.B. to live with Mother is not in B.B.’s best interests and that awarding

       physical custody of B.B. to Father is in the child’s best interests. These

       conclusions are based on the following findings:


               a.      Father works out of his home. . . . Father has plenty of
                       time to get his work done, especially with [B.B.] in school.
                       But even if [B.B.] was ill, Father has the ability to adjust
                       his . . .work schedule to accommodate [B.B.]


               b.      Father lives in a 3,000 square foot home with three
                       bedrooms, and two bathrooms. . . . Father lives within ten
                       minutes of most of his relatives. . . .


               c.      . . . Since [B.B.] began attending school [in father’s school
                       district], [B.B.] has shown steady improvement in his
                       performance from first to second semester. Father has
                       been very active with [B.B.’s] education and has shown
                       consistency with communicating with [B.B.’s] teachers
                       when necessary.


                                                       ***


               e.      Father fully cooperated with DCS, the Porter County
                       Sheriff’s Department and the GAL during the course of
                       their investigations into the allegations Mother raised

       Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017 Page 14 of 17
                against Father. Father contacted the DCS caseworker
                within 15 minutes of learning there was a complaint
                made. . . .


        f.      Mother, on the other hand, initially denied knowing about
                the DCS complaint when Father first contacted her about
                it. When Mother talked to the caseworker on the phone,
                Mother said the caseworker hung up on her. When
                Mother referred to the [law enforcement] investigation,
                Mother found the department “very unhelpful” the first
                time around. When Mother talked to Father about the
                GAL, she said, “Can’t we just get rid of her? F—k
                her.” . . . The GAL had little to no contact with Mother
                for the six months preceding the hearing. . . . Mother took
                issue or had problems with everyone involved.


        g.      Mother’s credibility is extremely suspect as well. First, she
                admitted that she knew Father had not engaged in sexual
                misconduct toward [B.B.] but filed the paperwork
                anyway . . . . She signed it under oath despite knowing it
                was false. Second, Mother testified that once she received
                the final call that everything had been dropped with the
                police and everything else, Father could pick up [B.B.] that
                Friday and resume his normal parenting time. In reality,
                Father had to have the additional assistance of the police
                to ultimately resume his regular parenting time due to
                Mother’s refusal to comply.


        h.      Despite Father being cleared of as many neglect
                allegations as Mother and Grandfather could muster,
                Mother still testified that [B.B.] would be safer with
                Mother and Grandfather than Father. Coincidentally,
                when the GAL conducted her investigation [in which she
                interviewed at least fourteen people], the only people who
                had concerns about Father’s parenting skills were Mother
                and maternal grandparents. It is not in [B.B.’s] best
Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017 Page 15 of 17
                       interest to live in a household with a parent who thinks
                       that she is more entitled to have custody or better able to
                       parent [B.B.] because she is the mother. . . . The attitudes
                       exhibited by Mother and Grandfather create an
                       environment that not only minimizes Father’s importance
                       and role in [B.B.’s] life but also makes it necessary for
                       Father to continuously defend against Mother’s and
                       Grandfather’s newest accusation.


       Id. at 18-20. The evidence in the record supports these findings.


[12]   It is readily apparent in reading the trial court’s order that it complied with both

       the letter and spirit of our instructions in the first appeal. It considered all

       required statutory factors and applied the burden-shifting analysis, going into

       thorough detail along the way. We find that the evidence in the record supports

       all the trial court’s findings of fact and that those findings, in turn, support the

       trial court’s decision to award physical custody of B.B. to Father and to deny

       Mother’s motion to relocate with the child. Mother’s arguments to the contrary

       amount to requests that we reweigh the evidence and second-guess the trial

       court’s assessment of the parties and witnesses—requests we decline.


[13]   At the end of the Appellee’s Brief, Father requested the imposition of sanctions,

       including appellate attorney fees, because of “Mother’s frivolous and vexatious

       appeal . . . .” Appellee’s Br. p. 20. We are tempted to grant this request given

       Mother’s provably false contention that the trial court failed to comply with this

       Court’s instructions. We are mindful, however, of the significant effect on

       Mother of the trial court’s order, which divested her of custody of her child, and

       understand that as a parent, she is taking all actions within her power to regain

       Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017 Page 16 of 17
       that custody. Given that reality, we decline to order attorney fees or other

       sanctions based on this appeal.


[14]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 64A03-1706-DR-1185 | November 16, 2017 Page 17 of 17
