MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                      May 15 2018, 5:59 am

regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Jon P. McCarty                                          Holly Crain Clemence
Covington, Indiana                                      Wallace Law Firm
                                                        Covington, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

David Galyen,                                           May 15, 2018
Appellant,                                              Court of Appeals Case No.
                                                        83A04-1711-DR-2664
        v.                                              Appeal from the Vermillion
                                                        Circuit Court
Amber Galyen,                                           The Honorable Harry A. Siamas,
Appellee.                                               Special Judge
                                                        Trial Court Cause No.
                                                        83C01-1507-DR-49




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018            Page 1 of 13
[1]   David Galyen (“Father”) appeals the trial court’s October 20, 2017 order on the

      objection to his intent to relocate and the request for custody filed by Amber

      Galyen (“Mother”). We affirm.


                                          Facts and Procedural History

[2]   Father and Mother have two children, born in 2008 and 2010. The trial court

      entered a decree of dissolution, file-stamped on January 10, 2017, dissolving the

      parties’ marriage and incorporating their settlement agreement. The agreement

      provided the parties shall have joint legal custody of the children and that

      Mother’s parenting time would be at a minimum one mid-week visit for four

      hours, weekend visitation from Friday after school until Monday at the

      beginning of school on two weekends per month, in even-numbered months

      and from Friday after school until Sunday evening on three weekends per

      month in odd-numbered months, and holiday overnight visits per the Indiana

      Parenting Time Guidelines. The agreement also provided Father would have

      the first two and last two weeks of summer visitation and Mother would have

      the balance of the summer with Father having visitation every other weekend

      from Friday until Monday morning.


[3]   On July 12, 2017, Father filed a notice of intent to relocate.1 On August 9,

      2017, Mother filed an objection to Father’s notice of intent to relocate and a




      1
          The record does not contain a copy of Father’s notice.


      Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 2 of 13
      petition to modify custody.2 On August 14, 2017, the court scheduled a hearing

      for September 28, 2017.3 Mother filed an affidavit for rule to show cause. 4 On

      September 28, 2017, the court held a hearing at which it heard testimony from

      Mother, Mother’s mother, and Father. The court heard testimony that Father

      had resided with the children in Ridge Farm, Illinois, and had worked in

      Danville, Illinois, that Mother lived nearby in Georgetown, Illinois, and that in

      August of 20175 Father relocated with the children to New Carlisle, Indiana,

      and began working for a new employer in New Carlisle with a higher salary.


[4]   On October 20, 2017, the court entered an order which provided:


                 1.     Initially, the burden is on the relocating parent to show
                 that the relocation is made in good faith and for a legitimate
                 reason. [Father] relocated to New Carlisle Indiana to obtain a
                 job at a much higher salary. He learned that he was hired in
                 early July and he gave notice of his intent to relocate to [Mother]
                 and the Court on July 12, 2017. The Court finds that [Father’s]
                 relocation was made in good faith and for a legitimate reason. In
                 addition, the Court finds that [Father] filed his notice of intent to
                 relocate within the time periods provided in I.C. 31-17-2.2-3(b).

                 2.      Next, since [Father] met his initial burden, the burden
                 shifts to [Mother] to show that the proposed relocation is not in



      2
          The record does not contain a copy of Mother’s objection or petition.
      3
       The chronological case summary (“CCS”), with respect to this entry, indicates: “MIN Date: 08/14/2017”
      and “Input: 08/21/2017.” Appellant’s Appendix at 9.
      4
       The record does not contain a copy of the affidavit. The CCS indicates the affidavit was filed on October
      11, 2017. However, the court observed at the September 28, 2017 hearing that the affidavit had been filed
      and would be considered at the hearing.
      5
          Father testified he had lived in New Carlisle since August 15th and that he signed his lease on July 31st.


      Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018                  Page 3 of 13
        the children’s best interests. The Court must consider the factors
        found in I.C. 31-l7-2.2-1(b) and any other factors that affect the
        best interests of the children. The Court finds that the distance of
        the relocation is about 180 miles and that the drive time is in
        excess of three hours. The distance makes it impossible for
        [Mother] to exercise the parenting time that she had been
        exercising. The distance adversely affects [Mother’s] ability to
        preserve her relationship with her daughters that she was able to
        maintain when the children lived in the same area as her. While
        [Father’s] reasons to relocate are entirely reasonable the
        relocation is a hardship on the children in that the relocation
        removes the children from close proximity to their mother, their
        paternal and maternal grandparents and their other extended
        family and friends. These are important relationships for the
        children. While [Father] is willing to do all the driving and
        transport the children back and forth between Georgetown
        Illinois and New Carlisle Indiana every other weekend and
        holidays, this is a long drive for the children, and it still means
        that [Mother] is deprived of her weekly Thursday visits, her third
        weekend every other month and the ability to participate in the
        children’s school activities, extra-curricular activities, and doctor
        and dental appointments. While [Mother] has joint legal custody
        of the children [Father’s] relocation effectively ends her ability to
        act as a joint legal custodian. [Father] presented evidence that
        the school system in New Carlisle is much better than the school
        system in Georgetown, and the Court has considered that
        evidence. However, on balance the Court finds that [Mother]
        has carried her burden of proof. The Court finds that relocation
        may be in [Father’s] best interest but it is not in the children’s
        best interests. The Court finds that therefore [Mother’s]
        objection to [Father’s] relocation of the children is sustained.

        3.     The Court finds that it is not best for the children to be
        moved during the school semester. The Court finds that the
        children should complete the current school term in New Carlisle
        and then they should be enrolled in an appropriate school in
        Georgetown or North Vermillion school district at the start of the

Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 4 of 13
              winter or spring school term. The Court finds that if [Father]
              chooses to relocate back to the Georgetown area then the order
              of January 10, 2017 shall remain in effect. If [Father] chooses to
              remain in New Carlisle then the children shall reside primarily
              with [Mother] and [Father] shall exercise parenting time
              pursuant to the Indiana Parenting Time Guidelines when
              distance is a factor.

              4.     The Court finds that [Father] did not receive notice of the
              Court’s order requiring him to enroll the children in Pinecrest
              Elementary School in Georgetown, Illinois until after he
              relocated to New Carlisle and he had enrolled the children in
              alternate schooling. The Court finds that the evidence is not
              sufficient for the Court to find that [Father] is in contempt of
              court and therefore the Court denies the affidavit for rule to show
              cause and [Mother’s] request for attorney fees.

      Appellant’s Appendix at 11-12.


                                                  Discussion

[5]   Father claims the trial court’s October 20, 2017 order is clearly erroneous and

      should be reversed. We review custody modifications for an abuse of

      discretion. In re Paternity of J.J., 911 N.E.2d 725, 727 (Ind. Ct. App. 2009). We

      will not reweigh the evidence or judge the credibility of the witnesses. Id. We

      consider only the evidence most favorable to the judgment and any reasonable

      inferences from that evidence. Id. at 727-728. Where a trial court enters

      findings of fact and conclusions of law, first we determine whether the evidence

      supports the findings, and second we determine whether the findings support

      the judgment. Lechien v. Wren, 950 N.E.2d 838, 841 (Ind. Ct. App. 2011). We

      will set aside the trial court’s specific findings only if they are clearly erroneous,


      Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 5 of 13
      that is, when there are no facts or inferences drawn therefrom to support them.

      Id. A judgment is clearly erroneous when a review of the record leaves us with

      a firm conviction that a mistake has been made. Id. The findings control only

      as to the issues they cover, and a general judgment standard applies to issues

      upon which the trial court made no findings. Id.


[6]   The Indiana Supreme Court has expressed a “preference for granting latitude

      and deference to our trial judges in family law matters.” In re Marriage of

      Richardson, 622 N.E.2d 178, 178 (Ind. 1993). Appellate deference to the

      determinations of our trial court judges, especially in domestic relations

      matters, is warranted because of their unique, direct interactions with the

      parties face-to-face, often over an extended period of time. 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. We will not substitute our own judgment if any evidence or legitimate

      inferences support the trial court’s judgment. Baxendale v. Raich, 878 N.E.2d

      1252, 1257-1258 (Ind. 2008).


[7]   Custody modifications are generally governed by Ind. Code § 31-17-2-21, which

      provides that a custody modification is permitted if the modification is in the

      best interests of the child and there has been a substantial change in one or

      more of the factors identified in Ind. Code § 31-17-2-8. In re Paternity of J.J., 911

      N.E.2d at 728.

      Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 6 of 13
[8]   Ind. Code §§ 31-17-2.2 governs the relocation of a custodial parent. Id. When a

      non-relocating parent seeks custody in response to a notice of intent to relocate

      with a child, the court shall take into account the factors found at Ind. Code §

      31-17-2.2-1(b). Id. at 729. In contrast to the modification statute, a relocation-

      based modification need not involve a substantial change to one of the original

      best interests factors. Jarrell v. Jarrell, 5 N.E.3d 1186, 1192 (Ind. Ct. App. 2014),

      trans. denied; In re Marriage of Harpenau, 17 N.E.3d 342, 346 (Ind. Ct. App.

      2014). Ind. Code § 31-17-2.2-1(b) provides:


              Upon motion of a party, the court shall set the matter for a
              hearing to review and modify, if appropriate, a custody order,
              parenting time order, . . . or child support order. The court shall
              take into account the following in determining whether to modify
              a custody order, parenting time order, . . . or child support order:

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

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

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


      Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 7 of 13
                         (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.

[9]    “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.”6 H.H. v. A.A., 3 N.E.3d 30, 34 (Ind. Ct.

       App. 2014) (citations omitted). “The court may consider a proposed relocation

       of a child as a factor in determining whether to modify a custody, parenting

       time order, . . . or child support order.” Ind. Code § 31-17-2.2-2(b).


[10]   The trial court is required to consider all the factors in Ind. Code § 31-17-2.2-

       1(b). In re Marriage of Harpenau, 17 N.E.3d at 347. The relocation statutes do

       not require findings, but there must be evidence in the record on the factors.

       Wolljung v. Sidell, 891 N.E.2d 1109, 1113 (Ind. Ct. App. 2008); see Harpenau, 17

       N.E.3d at 347 (“Although the trial court did not make specific findings about

       each factor, our review of the record shows that there was sufficient evidence of

       each relevant factor to support the trial court’s decision.”) (footnote omitted);




       6
         The factors listed in Ind. Code § 31-17-2-8 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 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; (8)
       evidence that the child has been cared for by a de facto custodian; and (9) a designation in a power of
       attorney of the child’s parent or a person found to be a de facto custodian of the child.

       Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018                  Page 8 of 13
       Nelson v. Nelson, 10 N.E.3d 1283, 1288 (Ind. Ct. App. 2014) (“[T]he trial court

       was not required to make a finding on all factors enumerated in I.C. § 31-17-

       2.2-1(b). So long as there is evidence on the record to support each of the

       factors, we will affirm the trial court’s finding.”).


[11]   The relocating individual has the burden of proof that the proposed relocation is

       made in good faith and for a legitimate reason, and if the relocating individual

       meets the burden of proof, the burden shifts to the nonrelocating parent to show

       that the proposed relocation is not in the best interest of the child. Ind. Code §

       31-17-2.2-5. When a relocation is made in good faith, the analysis ultimately

       turns on the best interests of the child. Baxendale, 878 N.E.2d at 1256 n.5.


[12]   Father argues that the trial court failed to consider or disregarded several of the

       factors in Ind. Code § 31-17-2.2-1(b) and notes that, while the relocation

       statutes do not require findings, at a minimum there must be evidence in the

       record on each of the factors. He further argues that the court’s findings are not

       supported by the evidence, no evidence supports the finding that Mother would

       be deprived of her third weekend every other month, she would merely lose the

       ability to keep the children overnight on Sunday every other weekend, there is

       no evidence the children participate in extra-curricular activities, and the record

       is devoid of any mention of the children’s medical or dental providers and

       where they are located.


[13]   Mother maintains that the court properly found the distance of the relocation

       would make it impossible for her to exercise all of her parenting time and


       Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 9 of 13
       adversely affect her ability to preserve her relationship with the children and

       that the court recognized that the children have strong ties and relationships

       with family and friends in the area of Georgetown and the importance of those

       relationships. She also argues the court properly notes that Father’s relocation

       effectively ends her ability to act as a joint legal custodian.


[14]   At the September 28, 2017 hearing, Mother testified that the children were six

       and nine years old, that she lived in Georgetown, Illinois, that the children had

       lived in New Carlisle for about a month, and that she was requesting custody.

       She testified that, if the court awarded her custody, she would move in with her

       mother and stepfather who lived about two minutes from her and then, within

       thirty or maybe sixty days, she would obtain a larger house so the children

       would have their own room. She testified the children had been moved away

       from their entire support system, there is no one in New Carlisle to watch them

       and they do not have family and friends there, her parents and Father’s

       grandparents are in Georgetown, and Father’s parents live in Ridge Farm

       which is ten minutes away. She indicated that, before they relocated, Father

       and the children lived with Father’s parents. She testified the children had

       attended school in North Vermillion when the parties lived in their marital

       residence and attended school in Georgetown after Father and the children

       moved to Georgetown to live with his parents. She testified that her mother

       would provide child care while she was at work. When asked if she was

       receiving her visitation, Mother stated “No I’m not. I’m getting every other

       weekend. I don’t get my four hours during the week. I don’t get my extra


       Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 10 of 13
       weekend anymore. I do not get my extra Sunday night.” Transcript Volume 2

       at 10. She testified that it took three hours to travel to New Carlisle. Mother

       presented evidence that she earned $12.10 per hour and testified that her hours

       of employment were from 9:00 a.m. to 5:30 or 6:30 p.m. on Mondays and

       Tuesdays, 12:30 or 1:30 p.m. to 8:00 p.m. on Wednesdays and Fridays, 10:00

       a.m. to 4:30 p.m. on two Saturdays per month, and 10:00 a.m. to 6:00 p.m. on

       one Sunday per month. Mother also asked for attorney fees due to contempt.


[15]   On cross-examination, Mother indicated that Father has provided

       transportation for the children to visit her, that the school in New Carlisle is a

       better school academically than the school in Georgetown, and that she lives in

       a home that, from what she was told, used to be a garage that was converted

       into a home. She indicated that, before Father relocated to New Carlisle,

       Father’s parents would watch the children between the time Father left for work

       and the time they left for school, that the children were released from school at

       2:15 p.m., that Father left work at 4:00 p.m., and that as far as she knew their

       grandmother watched them until Father arrived home. On redirect

       examination, Mother indicated that her mother was going to watch the children

       while she was at work and that she would be in the same residence as her

       mother. Mother’s mother testified that Mother and the children are welcome to

       stay at her house, that she is retired and available to drive the children to school

       and pick them up, and that she is concerned that the children are away from all

       of their support system.




       Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 11 of 13
[16]   Father testified he earns $17,000 more than he earned at his employment in

       Danville, Illinois, and he works one hour less per day and receives bonuses. He

       stated that the children board the bus at 6:40 a.m., they are released from school

       at 1:50 p.m., they take a bus to an after school program, and he picks them up

       after work. He testified that he would continue to provide all transportation for

       Mother’s parenting time, and that if the court says he cannot relocate the

       children, he would move back to Georgetown.


[17]   The record reveals that the evidence, as set forth above and in the record,

       supports the trial court’s findings that the distance of Father’s relocation was

       approximately 180 miles, that the travel time between Mother and Father’s

       residences is in excess of three hours, and that the distance adversely impacts

       Mother’s relationship with the children and removes the children from close

       proximity to their paternal and maternal grandparents. The court heard the

       testimony of Father and Mother, as well as that of Mother’s mother, related to

       the children’s schooling and the parties’ care for the children, their living

       arrangements, and their resources and work schedules. The court was able to

       consider Father’s testimony that he was willing to provide all of the

       transportation for Mother’s visitation and was willing to give Mother additional

       visitation to make up for any missed visitation. While the parties did not

       present certain evidence of the children’s medical appointments or of all of the

       school and extra-curricular activities in which they were or would be involved,

       the distance of Father’s relocation supports the trial court’s finding that the

       relocation effectively ended Mother’s ability to act as a joint legal custodian.


       Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 12 of 13
       The court was able to consider the testimony presented by the parties and to

       take into account the distance involved in the relocation, the hardship involved

       for Mother as the nonrelocating parent to exercise parenting time, the feasibility

       of preserving Mother’s relationship with the children through suitable parenting

       time and the financial circumstances of the parties, the conduct of the parties,

       and the reasons provided by Father for his relocation and by Mother for

       opposing the relocation. The court was also able to consider the evidence

       presented regarding the length of time the children lived with Father as well as

       the age and gender of the children, the parties’ wishes, the interrelationship of

       the children with their parents and other family members, and the children’s

       adjustment to their home and school.


[18]   Based upon the record, and keeping in mind our deference to trial judges in

       family law matters, we cannot say that there are no facts or inferences drawn

       therefrom to support the trial court’s findings or that the court’s decision is

       clearly erroneous.


                                                  Conclusion

[19]   For the foregoing reasons, we affirm the trial court’s October 20, 2017 order.


[20]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 83A04-1711-DR-2664 | May 15, 2018   Page 13 of 13
