FOR PUBLICATION
                                                    Feb 05 2014, 12:11 pm




ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

TIMOTHY J. VRANA                                LANDYN K. HARMON
Timothy J Vrana LLC                             Columbus, Indiana
Columbus, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

H.H.,                                           )
                                                )
        Appellant-Petitioner,                   )
                                                )
               vs.                              )         No. 03A01-1308-DR-354
                                                )
A.A.,                                           )
                                                )
        Appellee-Respondent.                    )


                APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
                      The Honorable Timothy B. Day, Special Judge
                           Cause No. 03D02-1206-DR-2868



                                     February 5, 2014


                                OPINION- FOR PUBLICATION


BRADFORD, Judge
                                     CASE SUMMARY

       Appellant-Petitioner H.H. (“Mother”) filed a notice of intent to relocate from

Bartholomew County to Hawaii with G.A. (the “Child”). Appellee-Respondent A.A.

(“Father”) objected to the relocation of the Child. The trial court denied Mother’s request to

relocate with the Child following an evidentiary hearing. Mother appeals. Upon review, we

conclude that Mother has shown a good faith and legitimate reason for proposing the

relocation, but that the trial court did not clearly err in finding that relocation was not in the

Child’s best interests. Accordingly, we affirm.

                         FACTS AND PROCEDURAL HISTORY

       Mother and Father were previously married.              They separated in 2005, and

subsequently divorced. Mother was pregnant when she and Father separated. The Child was

born on January 21, 2006. Father has been exercising parenting time with the Child since the

Child was a baby.

       In May of 2008, Mother married J.H. Father remarried in December of 2010.

Father’s wife, K.A., has four children from a previous relationship. She and Father also have

two children together.

       In light of her desire to move with the Child to Hawaii, Mother filed a Notice of Intent

to Relocate on April 18, 2012. Father objected to the relocation. On July 18, 2012, the trial

court conducted an evidentiary hearing on Mother’s request to relocate. Following the

conclusion of the July 18, 2012 hearing, the trial court issued an order denying Mother’s

request to relocate with the Child to Hawaii.



                                                2
      At some point after Mother’s first relocation request was denied, J.H. accepted

employment in and moved to Hawaii. J.H. subsequently admitted that he had accepted the

employment in Hawaii before the hearing on Mother’s first relocation request.

      On April 22, 2013, Mother filed a second Notice of Intent to Relocate. Mother also

filed a request for a change of trial judge. Mother’s request was granted, and, on May 6,

2013, the trial court assumed jurisdiction over the instant matter. On May 7, 2013, Father

objected to the proposed relocation. On June 28, 2013, the trial court conducted an

evidentiary hearing on Mother’s request to relocate.

      At the time of the evidentiary hearing, Father was exercising overnight, holiday, and

summer visitation pursuant to the Indiana Parenting Time Guidelines. Father was employed

by a Ray Skillman car dealership in Indianapolis. K.A. was employed by Magic Touch

Cleaning Service, cleaning numerous houses in Greenwood. Father and K.A. lived and

resided in Martinsville. Mother was employed as a nurse in Columbus. She lived with the

Child in Columbus. J.H. was employed as a government contractor working on the Pacific

Missile Range in Hawaii. Mother indicated that if permitted to move with the Child to

Hawaii, she intended to open a health clinic and work as a certified nurse practitioner.

Mother had created a business plan for this venture but had not yet initiated any steps to

secure funding. Mother acknowledged that she did not believe this business venture would

make a profit for a number of years.

      On July 12, 2013, the trial court entered an order denying Mother’s request to relocate.

The trial court’s order provided that custody of the Child would be granted to Father if



                                             3
Mother chose to relocate to Hawaii. This appeal follows.

                             DISCUSSION AND DECISION

                             I. Mother’s Request to Relocate

       Mother contends that the trial court erred in denying her request to relocate to Hawaii

with the Child.

                                  A. Standard of Review

       Although neither party requested specific findings of facts and conclusions thereon

pursuant to Indiana Trial Rule 52(A), the trial court made numerous findings regarding

whether Mother’s relocation request was made in good faith and for a legitimate purpose and

whether the proposed relocation would be in the Child’s best interest. As such, we employ a

two-tiered standard of review:

       [W]e must first determine whether the record supports the factual findings, and
       then whether the findings support the judgment. On appeal, we will not set
       aside the findings or judgment unless they are clearly erroneous, and due
       regard shall be given to the opportunity of the trial court to judge the
       credibility of witnesses. We therefore consider only the evidence favorable to
       the judgment and the reasonable inferences flowing therefrom, and we will
       neither reweigh the evidence nor assess witness credibility. A judgment is
       clearly erroneous when there is no evidence to support the findings, the
       findings do not support the judgment, or the trial court applies the wrong legal
       standard to properly found facts.

T.L. v. J.L., 950 N.E.2d 779, 783 (Ind. Ct. App. 2011) (quoting M.S. v. C.S., 938 N.E.2d 278,

281-82 (Ind. Ct. App. 2010)).

              We may affirm the trial court on any legal theory supported by the
       factual findings even if the trial court used a different legal theory. Mitchell v.
       Mitchell, 695 N.E.2d 920, 923 (Ind. 1998). Before affirming on a legal theory
       supported by the findings but not espoused by the trial court, we should be
       confident that our affirmance is consistent with all of the trial court’s factual


                                               4
       findings and inferences reasonably drawn therefrom. Id. at 924.
               “In addition […], our supreme court has expressed a ‘preference for
       granting latitude and deference to our trial judges in family law matters.’” In
       re Paternity of Ba.S., 911 N.E.2d 1252, 1254 (Ind. Ct. App. 2009) (quoting In
       re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). Our supreme
       court has recently re-emphasized this principle, stating that we afford such
       deference because of trial judges’ “unique, direct interactions with the parties
       face-to-face.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “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.” Id.; see also Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.
       2002). Therefore, we “will not substitute our own judgment if any evidence or
       legitimate inferences support the trial court’s judgment. The concern for
       finality in custody matters reinforces this doctrine.” Baxendale v. Raich, 878
       N.E.2d 1252, 1257-58 (Ind. 2008).

Id. at 783-84.

                       B. Denial of Mother’s Request to Relocate

       Pursuant to Indiana Code section 31-7-2.2-1(a), “[a] relocating individual must file a

notice of the intent to move with the clerk of the court that: (1) issued the custody order or

parenting time order; or (2) … has jurisdiction over the legal proceedings concerning the

custody of or parenting time with a child; and send a copy of the notice to any nonrelocating

individual.”

       A nonrelocating parent may object to relocation in either of two ways: by filing
       a motion to modify the custody order or by filing, within sixty days of receipt
       of the notice, a motion to prevent relocation of the child. Baxendale, 878
       N.E.2d at 1256 n.5; see Ind. Code § 31-17-2.2-5(a) (regarding motion to
       prevent relocation). Upon request of either party, the trial court shall hold a
       full evidentiary hearing to grant or deny a motion to prevent relocation of the
       child. Ind. Code § 31-17-2.2-5(b). “The relocating individual has the burden
       of proof that the proposed relocation is made in good faith and for a legitimate
       reason.” Ind. Code § 31-17-2.2-5(c). If the relocating parent meets that
       burden, “the burden shifts to the nonrelocating parent to show that the
       proposed relocation is not in the best interest of the child.” Ind. Code § 31-17-


                                              5
         2.2-5(d).

T.L., 950 N.E.2d at 784.

         In determining whether to permit a relocation, the trial court shall take into account

the following:

         (1) The distance involved in the proposed change of residence.
         (2) The hardship and expense involved for the nonrelocating individual to
         exercise parenting time ….
         (3) The feasibility of preserving the relationship between the nonrelocating
         individual and the child through suitable parenting time … including
         consideration of the 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.

Ind. Code § 31-17-2.2-1. “The ‘other factors affecting the best interest of the child’ include,

by implication, the factors set forth for custody determinations and modifications under

Indiana Code section 31-17-2-8.[1]” T.L., 950 N.E.2d at 785 (citing Baxendale, 878 N.E.2d at

1257).

                    1. Whether Mother’s Relocation Request Was Made in
                          Good Faith and For a Legitimate Reason

         Mother claims that the trial court erroneously determined that she failed to prove that


         1
           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 the child’s parent or parents, the
child’s sibling, and any other person who may significantly affect the child’s best interests; (5) the child’s
adjustment to the child’s home, school, and community; (6) the mental and physical health of all individuals
involved; (7) evidence of a pattern of domestic or family violence by either parent; and (8) evidence that the
child has been cared for by a de facto custodian. Ind. Code § 31-17-2-8.


                                                         6
her relocation request was made in good faith and for a legitimate reason. Specifically,

Mother challenges the trial court’s determination that her desire to join J.H., who had already

moved, in Hawaii did not present a good faith or legitimate reason for relocation of Mother

and the Child from Columbus to Hawaii.

       As we noted in T.L., our body of case law has not explicitly set forth the meaning of

legitimate and good faith reasons in the relocation context. 950 N.E.2d at 787. However, we

observed that “it is common in our society that people move to live near family members, for

financial reasons, or to obtain or maintain employment.” Id. at 787-88. Thus, we inferred

that these and similar reasons are what the legislature intended in requiring that relocation be

for “legitimate” and “good faith” reasons. Id. at 88. We further noted that, as the relocation

statute provides and the Indiana Supreme Court has observed, the resolution of relocation

disputes ultimately turns on a judicial determination of the best interests of the child, part two

of the two-prong standard. Id. (citing Baxendale, 878 N.E.2d at 1256 n.5). “If part one, the

requirement of a legitimate and good faith reason, posed an inordinately high bar for a

relocating parent to meet, it could too often prevent trial courts from reaching part two and

appropriately deciding the dispute based on the best interests of the affected child.” Id.

       In the instant matter, the trial court concluded that Mother failed to demonstrate that

her desire to relocate to Hawaii with the Child was made in good faith and for a legitimate

purpose. In making this determination, the trial court found as follows:

       (9) The Court finds no legitimate reason other than personal preference for
       Mother and her husband to move with [the Child] to the State of Hawaii.
       Neither Mother or her husband have ever lived in Hawaii prior. Neither has
       friends or relatives in that State. Neither is required to reside in that State for


                                                7
       employment purposes. Both Mother and her husband were gainfully employed
       here in Indiana prior to the relocation proceedings being initiated.

       (10) The Court has considered Indiana Code 31-17-2.2-5(c) which places the
       burden upon Mother to prove that her proposed relocation to the State of
       Hawaii is being made in good faith and for a legitimate reason. The Court has
       already determined that there is no legitimate reason for Mother’s relocation.
       The Court also determines that the most recent request to relocate filed by
       Mother is not being done in good faith given the fact that the proposed
       relocation has already been denied by another judge based upon nearly the
       same evidence heard at the most recent hearing. The only significant
       difference between the two hearings is the fact that Mother’s present husband
       decided to move his residence to the State of Hawaii knowing that Mother’s
       request to relocate had been denied. The Court views this as negative to
       Mother’s second relocation petition because Mother’s husband has placed his
       own interests ahead of his wife and her child. This calls into question his
       commitment to Mother and [the Child] both presently and in the future.

Appellant’s App. pp. 15-16.

       During the evidentiary hearing, Mother admitted that she had desired to move to

Hawaii since she and J.H. had visited Hawaii on their honeymoon. She testified that while

she was gainfully employed in Columbus as a nurse, differences in the laws of the State of

Indiana and the State of Hawaii would allow her to work in Hawaii in her own clinic as a

certified nurse practitioner with more autonomy than she would have in Indiana. In addition,

while J.H. admitted that he was making approximately the same salary in Hawaii that he had

been making in Columbus, he testified that he was required to work significantly less hours

in his employment in Hawaii and that his employment in Hawaii provided health benefits

which had not been affordable when he was self-employed in Columbus.

       Again, the resolution of relocation requests ultimately turns on a judicial

determination regarding the best interests of the children involved. See T.L., 950 N.E.2d at



                                             8
788. As such, without determining whether the record supports the trial court’s statement

that it believed that Mother’s request to relocate was not made in good faith and her and

J.H.’s desire to move to Hawaii was made out of personal preference as opposed to their

stated desire to improve both their and the Child’s quality of life, we conclude that Mother’s

stated reason for her request to relocate to Hawaii with the Child, i.e., to live and create a

family life with J.H., was sufficient to prove that her request was made in good faith and for

a legitimate purpose. See In re the Paternity of X.A.S., 928 N.E.2d 222 (Ind. Ct. App. 2010)

(providing that the father presented a good faith and legitimate reason for the proposed

reason for relocation, i.e., he had recently married a member of the U.S. Navy whose ship

was docked in California, and he wished to relocate to California to live with his new

spouse).

       In sum, in light of its finding that Mother proposed relocation in order to live with her

husband, J.H., who had already relocated to Hawaii, we conclude that the trial court erred in

its conclusion that Mother’s proposed relocation was not made in good faith and for a

legitimate reason. However, our inquiry does not end there because the trial court also

determined that relocation was not in the Child’s best interests, a determination which we

now examine.

             2. Whether Relocation Was in the Best Interests of the Child

       Mother also claims that the trial court erred in determining that the requested

relocation was not in the Child’s best interests. Specifically, Mother claims that the trial

court erroneously determined that relocation was not in the Child’s best interests because the



                                               9
trial court did not make a specific finding relating to each of the factors available for

consideration under Indiana Code sections 31-17-2.2-1 and 31-17-2-8. We disagree and state

that while the trial court is to consider all relevant factors, the trial is not necessarily required

to make specific findings on each factor unless requested to do so by the parties. See

generally, Baxendale, 878 N.E.2d at 1254 n.2. (upholding the trial court’s denial of the

mother’s request to relocate despite the fact that the trial court did not make any specific

findings because the parties had indicated that they did not believe findings and conclusions

were necessary).

       In determining that the requested relocation was not in the Child’s best interests, the

trial court found the following:

       It has been established that [the Child] is thriving in her present State of
       residence. She is able to visit with her Father and grandmother regularly. She
       attends private school and is receiving good grades. Whether [the Child] will
       achieve as well at a private school in the State of Hawaii is unknown. [The
       Child]’s reaction to being separated from her Father, grandmother, and friends
       is also unknown. The Court is aware that [the Child]’s separation from her
       stepfather has had a negative impact on her. It only stands to reason that her
       being separated from nearly everything else she knows will likewise have a
       negative impact on her. For these reasons, Court finds that Mother’s proposed
       relocation to the State of Hawaii is not in the best interest of [the Child].

Appellant’s App. p. 16. The trial court also heard evidence regarding the distance involved

in the proposed change of residence; the significant decrease in the regularity with which

Father could exercise parenting time; the unlikelihood that the close nature of the relationship

between the Child and Father would be preserved if relocation were permitted; the

interactions of the Child with her parents, her step-mother, her paternal grandparents, and her

step- and half-siblings; and the Child’s adjustment to her home, school, and the community;


                                                 10
and prior attempts by Mother to thwart Father’s exercise of parenting time with the Child.

The trial court also heard testimony from two separate social workers regarding the Child’s

best interests.

       When reviewing a determination regarding the best interests of a child for relocation

purposes, we “view the evidence in a light most favorable to the trial court’s decision and

defer to the trial court’s weighing of the evidence.” T.L., 950 N.E.2d at 788-89. The trial

court’s findings referred to evidence that the Child has adjusted well to and is thriving in her

current environment and questions regarding the feasibility of maintaining the Child’s close

relationship with Father and paternal grandmother. Upon review, we conclude that the trial

court’s findings are supported by the evidence in the record. In addition to the evidence

relating to the trial court’s findings, the trial court heard evidence regarding the other

applicable factors relating to the Child’s best interests. This evidence also supports the trial

court’s determination that the proposed relocation to Hawaii was not in the Child’s best

interests.

                           a. Distance Involved Resulting in
                       Increased Costs Associated with Visitation

       Again, Mother presented evidence that she intended to relocate from Columbus to

Hawaii with the Child. It is uncontested by the parties that Hawaii is a very far distance from

Father’s home in Martinsville. Father testified that he would not be able to afford to travel to

Hawaii to visit with the child. In addition, while Mother testified that she was willing to bear

the additional costs associated with transportation to and from visits with Father, the trial

court expressed concerns about Mother’s ability to pay for said expenses in addition to the


                                              11
increased cost of living in Hawaii in light of J.H.’s wages and the uncertainty surrounding

Mother’s earning capability over the next few years. This evidence supports the trial court’s

determination that the proposed relocation was not in the Child’s best interests.

                   b. Available Parenting Time and the Preservation
                of the Close Relationship Between the Child and Father

       The record indicates that at the time of the hearing, Father was exercising visitation

with the Child every other weekend. Father also exercised extended parenting time during

the holidays and summer months. In addition, Father exercised some mid-week visitation

and spoke with the Child each night via the telephone. Should Mother relocate to Hawaii

with the Child, Father’s visitation would likely be limited to one week over the Christmas

holiday and seven weeks during the summer. This would result in a substantial decrease in

the regularity of Father’s visitation with the Child as well as the number of days Father is

able to exercise parenting time with the Child.

       Mother does not dispute that there would be a significant change in the regularity of

Father’s visitation with Father and reduction in the time that the Child could physically spend

with Father if she were permitted to relocate with the Child to Hawaii. Mother merely argues

that Father and the Child could preserve their current close relationship by continuing to

communicate on a daily basis via telephone.

       The record demonstrates that the Child has a close relationship with Father. The Child

spends significant amounts of time with Father and talks to Father every night via telephone.

Father expressed concern about the effect that the months-long stretches where Father would

not have the ability to physically exercise parenting time with the Child would have on their


                                              12
relationship. The trial court found that uncertainties exist regarding the feasibility of

continuing the close relationship with Father if Mother’s request to relocate with the Child to

Hawaii was granted. The substantial change in the regularity with which the Child could

physically spend time with Father, coupled with the uncertainty regarding the feasibility of

maintaining a continuing close relationship between the Child and Father supports the trial

court’s determination that the proposed relocation was not in the Child’s best interests.

         c. The Child’s Relationships and Interactions with Family Members

       The record also demonstrates that in addition to a close bond with her parents and

step-father, the Child also has a close bond with her step-mother, step- and half-siblings, and

her paternal grandparents. The Child’s step- and half-siblings live with Father and step-

mother in Martinsville. Paternal grandparents also live in Martinsville. The Child appears to

benefit from each of these relationships as she is a happy, well-adjusted, and thriving child.

The record clearly demonstrates that both parents, each step-parent, and paternal

grandparents love the Child and have played significant roles in her care and development. It

is also undisputed that neither Mother nor Father have any extended family living in Hawaii.

This evidence supports the trial court’s determination that the proposed relocation was not in

the Child’s best interests.

               d. Child’s Adjustment to Home, School, and Community

       The trial court also heard evidence that the Child had adjusted well and was thriving

in her current school and had many friends. This evidence supports the trial court’s

determination that the proposed relocation was not in the Child’s best interests



                                              13
                         e. Recommendations of Social Workers

       The parties presented conflicting opinions from two different social workers who had

met with the Child. Cassie Fox, the social worker chosen by Mother, indicated that she

believed that relocation to Hawaii was in the Child’s best interests, while Megan Larson, the

social worker chosen by Father, indicated that she believed that relocation was not in the

Child’s best interests. Fox based her determination on her belief that the Child wanted to

relocate to Hawaii. Larson based her determination on her belief that the Child had a close

relationship with Father and Father’s family. The parties concede that the trial court was not

bound to follow the recommendation of either social worker. In addition, in considering

Fox’s and Larson’s testimony, the trial court, acting as the trier-of-fact, was free to believe or

disbelieve each witness’s testimony and to weigh said testimony accordingly. See Thompson

v. State, 804 N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621 N.E.2d 308, 320 (Ind.

1993); Nelson v. State, 525 N.E.2d 296, 297 (Ind. 1988); Hubble v. State, 260 Ind. 655, 660,

299 N.E.2d 612, 615 (1973). The trial court heard evidence which supports its determination

that the proposed relocation was not in the Child’s best interests.

                      f. Mother’s Prior Attempt to Thwart Father’s
                        Exercise of Parenting Time With the Child

       In addition, while Mother claims that she has never attempted to thwart Father’s

contact with the Child, the trial court heard evidence to the contrary. The trial court heard

evidence that Mother had previously been found in contempt for a prior refusal to allow

Father to exercise parenting time with the Child. This evidence supports the trial court’s

determination that the proposed relocation was not in the Child’s best interests.


                                               14
         g. Trial Court’s Determination Regarding the Child’s Best Interests

       Based upon our review of the record, the trial court’s determination is supported by

ample evidence in the record relating to the Child’s best interests. Mother’s challenge

effectively amounts to an invitation for this court to reweigh the evidence presented by the

parties, an invitation which we decline. See T.L., 950 N.E.2d at 789. As such, we conclude

that the trial court did not err in determining that the requested relocation was not in the

Child’s best interests.

       The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




                                            15
