MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                   Dec 20 2016, 6:21 am

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


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



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re: the Marriage of                                  December 20, 2016
S.B.,                                                   Court of Appeals Case No.
Appellant-Petitioner,                                   64A03-1603-DR-533
                                                        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 64A03-1603-DR-533 | December 20, 2016   Page 1 of 17
[1]   S.B. (Mother) appeals the trial court’s order granting primary physical custody

      of her child, B.B., to J.B. (Father). She raises three arguments: (1) the trial

      court failed to conduct the required statutory analysis for a relocating parent; (2)

      her due process rights were violated; and (3) the trial court erred by ordering her

      to pay a portion of Father’s attorney fees. We find that the trial court failed to

      conduct the required statutory analysis, though we find no error on Mother’s

      latter two arguments. Therefore, we reverse and remand so that the trial court

      can engage in the proper analysis and enter a new order to that effect.


                                                    Facts
[2]   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.
           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


      Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 2 of 17
            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.


[3]   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. 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.


[4]   On January 7, 2015, Mother filed a notice of intent to relocate and a petition to

      modify parenting time based on the Play-Doh incident. On February 23, 2015,

      Father filed a motion for an order to prevent the relocation of B.B. and a




      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.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016        Page 3 of 17
      petition to modify custody, parenting time, and child support. On February 27,

      2015, the trial court issued an interim order allowing Mother to relocate with

      B.B. but prohibiting her from enrolling the child in kindergarten. On

      November 10, 2015, Mother filed a motion seeking to have Father found in

      contempt because he had enrolled B.B. in kindergarten and failed to inform her,

      causing her to miss her son’s first day of kindergarten.


[5]   On February 23, 2016, the trial court held an evidentiary hearing on all pending

      motions. Mother was pro se at that hearing. In its order, which was entered on

      February 26, 2016, the trial court found and held, in relevant part, as follows:

              27.     . . . The Court has considered the following:


                                                      ***


                      b.       Mother currently has “physical custody” of [B.B.]
                               and would like the Court to make her the sole
                               custodial parent. Father would like physical
                               custody to be awarded to him.


                                                      ***


                      d.       [B.B.] interacts very well with both parents.


                                                      ***


                      e.       There was no evidence to refute the fact that [B.B.]
                               has adjusted well to Mother’s new residence in
                               North Judson. . . .


      Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 4 of 17
                                                ***


                g.       [B.B.] is attending full day kindergarten in
                         Father’s . . . school district . . . . [B.B.’s] teacher has
                         reported that [B.B.] is doing well at school. . . .
                         Because of [B.B.’s] young age, the Court does not
                         have any concerns that he would function well in
                         either school system.


                                                ***


                j.       . . . Mother and Father have both conducted
                         themselves in ways that have been (or are likely to
                         have been) detrimental to [B.B.]


                k.       Father has done things which the Court finds ill-
                         advised, immature and reckless.


                                                ***


                l.       Mother has her own issues in the Court’s eyes.


                         i.      Perhaps it is because of Mother’s
                                 employment with Family Services that colors
                                 Mother’s perception that every scratch and
                                 bump on [B.B.] is suspicious. Unfortunately,
                                 Mother’s means of dealing with her
                                 suspicions has manifested itself in an
                                 abundance of photographs being taken of the
                                 child to document his “injuries.” The Court
                                 finds this disturbing in general and
                                 detrimental to [B.B.] because every time she
                                 poses him for another photo, it potentially
                                 raises questions in [B.B.’s] mind that

Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 5 of 17
                                 something is wrong—again. . . . Her
                                 excessive documentation demonstrated her
                                 willingness to use [B.B.] to further her cause
                                 in this custody dispute.


                                                ***


        29.     The Court finds that Mother’s relocation was made in
                good faith and for a legitimate reason. Her lease had
                expired on her residence, her roommate had moved away
                and the rent was due to increase to an extent Mother could
                not afford.


                                                ***


        32.     Normally when relocation is an issue, once Mother proved
                that she had a legitimate reason to move, the burden
                would shift to Father to show that the proposed move was
                not in [B.B.’s] best interest.


        33.     Because the Court has previously determined that this
                matter is not actually a modification of custody issue but
                an initial determination of custody, the Court has reviewed
                and taken into consideration all of the relocation factors
                outlined in I.C. 31-17-2.2-2. Given the Court’s decision to
                award physical custody to Father, it is unnecessary to
                analyze each relocation factor in this Order.


        34.     The Court finds after considering all relevant factors
                required by statute that Father is awarded sole physical
                custody of [B.B.]




Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 6 of 17
      Appellant’s App. p. 11-15. The trial court ordered that Mother and Father

      would continue to share joint legal custody, set forth a detailed schedule of

      Mother’s parenting time, ordered Mother to pay child support in the amount of

      $18 per week, and declined to find Mother in contempt for her decision to

      withhold parenting time from Father in December 2014. The trial court did not

      rule on Mother’s motion to have Father found in contempt for enrolling B.B. in

      kindergarten and not informing her. Finally, the trial court ordered Mother to

      pay attorney fees to Father’s attorney in the amount of $700. Mother now

      appeals.


                                   Discussion and Decision
                                   I. Custody Modification
[6]   Mother argues that the trial court erred by granting Father’s petition to modify

      custody without considering all statutorily required factors. In its order, the

      trial court sua sponte entered findings of fact and conclusions of law. In

      reviewing the order, we first determine whether the 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.


[7]   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.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 7 of 17
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.


        (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.



Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 8 of 17
              (6)     Other factors affecting the best interest of the child.


      I.C. § 31-17-2.2-1(b) (emphasis added). If, however, the notice of relocation is

      filed in the context of an initial custody determination (as opposed to a

      modification of an already-existing order), then “the court may consider” the

      factors above. I.C. § 31-17-2.2-2(a) (emphasis added). In either case, there is 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.


      I.C. § 3-17-2.2-5.


[8]   To determine how the trial court was required to proceed, therefore, we must

      determine whether its custody ruling constituted an initial custody order (as it

      found) or a custody modification in the context of a relocating parent (as

      Mother contends). First, we turn to the language of the trial court’s original

      order, as found in the parties’ Mediated Agreement. That Agreement explicitly

      stated that the parents would share joint legal custody. And although it did not

      make an explicit statement about physical custody, it clearly implied that B.B.

      would live with Mother, while Father would receive parenting time. Moreover,

      Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 9 of 17
       Father’s child support obligation was calculated on an assumption that he

       would exercise 140 annual overnights—less than 50%. However, Father also

       cared for B.B. during nearly every week day while Mother was at work. At the

       very least, therefore, the Mediated Agreement implied that the parties intended

       to share joint physical custody of the child. 2


[9]    We do not believe that either the trial court or the parents intended to leave the

       very important issue of B.B.’s physical custody unresolved. When the trial

       court entered its final dissolution decree, incorporating the Mediated

       Agreement, it had to have intended that to be a final order, disposing of all

       issues, including the crucial issue of physical custody of the child. It is

       necessarily true, therefore, that any subsequent order regarding custody or

       parenting time would be a modification of that initial order. 3


[10]   Having concluded that the trial court’s order was a modification of an already-

       existing order regarding custody, parenting time, and child support, we must

       now consider the interplay between custody modification and a parent’s plan to

       relocate. This Court has explained that interplay as follows:

                [O]ur supreme court addressed the statutory interplay between
                the Relocation Factors and the Best Interests Factors [in



       2
         Mother insists that she was awarded physical custody of B.B. in the Mediated Agreement. We need not
       resolve this issue, however, as even if the parties agreed on joint physical custody, the subsequent order was a
       modification, meaning that the trial court erred.
       3
         And indeed, Father clearly assumed as much, given that the motion that he filed—and that the trial court
       ruled upon—was a motion to modify custody and parenting time, rather than a motion for an initial custody
       order.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016           Page 10 of 17
               Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008)]. Initial custody
               determinations are to be based on an analysis of the Best Interests
               Factors. Id. at 1254. In order to modify the initial custody
               decree, the trial court must find that modification is in the child’s
               best interests and that “there has been ‘a substantial change’ in
               one or more of the [Best Interests Factors] identified in . . . the
               initial custody determination.” Id. at 1255 (quoting I.C. § 31-17-
               2-21 (the Modification Statute)). If, however, the trial court
               reviews a request to modify custody stemming from a parent’s plan
               to relocate, the court must assess the Relocation Factors, which
               “incorporate[ ] all of the [Best Interests Factors], but add[ ] some
               new ones.” Id. at 1256-57. A parent’s proposed relocation does
               not necessarily require a custody modification, and, in contrast to
               the Modification Statute, a relocation-based modification need
               not involve a substantial change to one of the original Best
               Interests Factors. Id.


       Jarrell v. Jarrell, 5 N.E.3d 1186, 1191-92 (Ind. Ct. App. 2014) (emphases

       original), trans. denied. When a motion to modify custody is filed in response to

       the other parent’s notice of intent to relocate, the trial court is required to fully

       consider all of the factors listed in Indiana Code section 31-17-2.2-1(b), and the

       failure to do so is reversible error. E.g., In re Paternity of J.J., 911 N.E.2d 725,

       730-31 (Ind. Ct. App. 2009) (holding that modification of child custody was

       erroneous where trial court failed to fully consider each factor in relocation

       statute); Wolljung v. Sidell, 891 N.E.2d 1109, 1112-13 (Ind. Ct. App. 2008)

       (same).


[11]   In the case before us, the trial court explicitly refused to apply the relevant

       relocation statutory provisions:



       Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 11 of 17
               32.     Normally when relocation is an issue, once Mother proved
                       that she had a legitimate reason to move, the burden
                       would shift to Father to show that the proposed move was
                       not in [B.B.’s] best interest.


               33.     Because the Court has previously determined that this
                       matter is not actually a modification of custody issue but
                       an initial determination of custody, the Court has reviewed
                       and taken into consideration all of the relocation factors
                       outlined in I.C. 31-17-2.2-2. Given the Court’s decision to
                       award physical custody to Father, it is unnecessary to
                       analyze each relocation factor in this Order.


       Appellant’s App. p. 15. In relevant part, the trial court had two motions before

       it. First, as to Father’s motion to prevent B.B.’s relocation, which is governed

       by Indiana Code section 31-17-2.2-5, the trial court failed to apply the burden-

       shifting provision found in this statute, which requires that Father show that the

       proposed relocation was not in the child’s best interest. Second, as to Father’s

       motion to modify custody and parenting time, which is governed by Indiana

       Code section 31-17-2.2-1(b), the trial court failed to fully consider and analyze

       all of the mandatory relocation factors found in this statute.


[12]   It appears from the transcript that the parties each presented evidence related to

       all of the relocation factors. Therefore, an entirely new evidentiary hearing is

       not necessary. Instead, the trial court must apply the burden-shifting provision

       and fully analyze all of the relocation factors, reaching its conclusions based on

       the evidence in the record. We note that the trial court has already found that

       Mother met her burden of establishing that the relocation was made in good


       Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 12 of 17
       faith and for a legitimate reason. The burden shifts, therefore, to Father. For

       the trial court to rule in Father’s favor would require a finding that the

       relocation is not in B.B.’s best interest. We reverse and remand so that the trial

       court can draft and enter a new order.


                                               II. Due Process
[13]   We will briefly address Mother’s due process argument. Specifically, she

       contends that the trial court was prejudiced against her, that it failed to rule on

       her contempt allegations, and that the mediator breached confidentiality

       obligations when testifying at the hearing. As for the trial court’s demeanor,

       our Supreme Court has noted that a “crusty demeanor” towards litigants is

       acceptable so long as it is applied even-handedly. In re J.K., 30 N.E.3d 695,

       698-99 (Ind. 2015). In this case, while the trial court at times expressed

       frustration with Mother, often stemming from the fact that she was proceeding

       pro se and uneducated in courtroom process, the trial court also expressed

       frustration with Father and his past behavior, particularly the Play-Doh

       incident. We do not find any of the trial court’s behavior towards Mother in

       this case to indicate that it was biased against her, nor do we find that her due

       process rights were violated for this reason.4




       4
         Mother also argues that the guardian ad litem was biased against her, but does not explain how that alleged
       fact would violate her due process rights. In any event, we find no support in the record for this allegation.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016          Page 13 of 17
[14]   Second, Mother argues that the trial court failed to rule on her motion to have

       Father held in contempt for enrolling B.B. in kindergarten. While Mother filed

       a motion to have Father held in contempt, she did not request that a rule to

       show cause be issued. As no rule to show cause was issued, the trial court

       would have committed reversible error had it found Father in contempt. See

       Henderson v. Henderson, 919 N.E.2d 1207, 1210-11 (Ind. Ct. App. 2010) (holding

       that if no rule to show cause is issued in compliance with Ind. Code section 34-

       47-3-5, then a person may not be held in indirect contempt). Additionally, at

       the start of the hearing, the trial court asked the parties to clarify all of the

       pending motions before it, and Mother did not include her motion for contempt

       in the list. Therefore, if nothing else, the trial court’s failure to rule on the issue

       was invited error.


[15]   Finally, Mother alleges that the mediator’s testimony violated her rights

       because the mediator divulged confidential information. It is well established

       that evidence of conduct or statements made during mediation is not admissible

       and that this confidentiality requirement may not be waived by either party.

       A.D.R. Rule 2.11. Here, the mediator largely testified to basic facts: he was

       present at the mediation at issue and the parties reached a mediated agreement;

       the agreement presented to him at trial was the agreement they reached; and the

       agreement said what it said. Tr. p. 85-88. None of that testimony divulged

       confidential information or was in any way improper. On a couple of

       occasions, however, the mediator veered into what he believed the parties

       intended. Tr. p. 87 (“that was the only reference to—and it was an intentional


       Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 14 of 17
       reference—that there would be no other distinction with respect to physical

       custody”), 88 (“there was always this understanding that there was going to be

       this shared parenting time and equal division of time”). That testimony was

       improper, as it implicitly divulged the content of the parties’ negotiations. That

       said, we do not find that this de minimis testimony rose to a level of a violation

       of Mother’s due process rights, and decline to reverse on this basis.


                                         III. Attorney Fees
[16]   Finally, Mother argues that the trial court erred by ordering her to pay attorney

       fees in the amount of $700 to Father’s attorney. We will reverse an attorney fee

       award in a post-dissolution context only if the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before it. Ratliff v.

       Ratliff, 804 N.E.2d 237, 249 (Ind. Ct. App. 2004). Where, as here, the trial

       court did not issue findings with respect to this issue, we will affirm the general

       judgment if it can be sustained upon any legal theory supported by the evidence

       in the record. In re Marriage of Snemis, 575 N.E.2d 650, 652 (Ind. Ct. App.

       1991).


[17]   Indiana Code section 31-17-2.2-1(c) provides that, in the context of a relocation

       hearing, the trial court may “award reasonable attorney fees for a motion [to

       review and modify custody or parenting time] filed under this section in

       accordance with IC 31-15-10.” Indiana Code section 31-15-10-1(a) states that

       the trial court “may order a party to pay a reasonable amount for the cost to the




       Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 15 of 17
       other party of maintaining or defending any proceeding under this article and

       for attorney’s fees and mediation services . . . .”


[18]   Mother argues that because the trial court did not hold her in contempt for her

       decision to withhold parenting time from Father following the Play-Doh

       incident, there is no basis in the record for the attorney fee award. The trial

       court found that Mother should have called Father following the Play-Doh

       incident instead of involving “several governmental agencies” and that she

       withheld parenting time even after being notified that “[n]one of the agencies

       opted to investigate further or charge Father with anything.” Appellant’s App.

       p. 14.


[19]   Father submitted documentation establishing that he incurred attorney fees in a

       total amount of $4495. Resp. Ex. 20-21. We find that the trial court did not err

       by ordering Mother to pay $700—a reasonable portion of the total fees he

       incurred. However, after engaging in the proper statutory analysis and entering

       a new order, the trial court would be within its authority to reevaluate the

       attorney fee award and reach a different result.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016   Page 16 of 17
[20]   The judgment of the trial court is reversed and remanded with instructions to

       reevaluate its order by applying the correct statutory analysis and issue a new

       order to that effect.5


       Robb, J., and Brown, J., concur.




       5
         Depending on the result of its new analysis, the trial court may reach the same result or a different result on
       all pending issues, including custody, parenting time, and attorney fees.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1603-DR-533 | December 20, 2016            Page 17 of 17
