MEMORANDUM DECISION
                                                                   Mar 19 2015, 9:58 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Angela Field Trapp                                       Nicole A. Zelin
Trapp Law, LLC                                           Pritzke & Davis, LLP
Indianapolis, Indiana                                    Greenfield, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re: the Marriage of:                                  March 19, 2015
                                                         Court of Appeals Cause No.
Shawn Lucas,                                             70A01-1408-DR-332
                                                         Appeal from the Rush Circuit Court
Appellant,
                                                         Cause No. 70C01-1105-DR-230
        v.                                               The Honorable David E. Northam,
                                                         Judge
Ashley Lucas,
Appellee.




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015      Page 1 of 19
                                              Case Summary

[1]   Shawn Lucas (“Father”) appeals the trial court’s modification of custody in

      favor of Ashley Lucas (“Mother”) and denial of Father’s motion to correct

      error. We affirm.


                                                    Issues
[2]   Father raises several issues, which we consolidate and restate as:

                      I.       whether the trial court abused its discretion by
                               modifying legal and physical custody;

                      II.      whether the trial court abused its discretion by
                               suspending Father’s right of first refusal; and

                      III.     whether the trial court abused its discretion
                               regarding the parenting time awarded to
                               Father.

[3]   Mother argues that Father’s appeal should be dismissed as untimely.


                                                     Facts
[4]   Father and Mother were married and had one child, W.L, who was born in

      February 2010. In May 2011, a petition for dissolution of marriage was filed,

      and the marriage was dissolved in October 2011. At that time, the parties

      agreed to joint legal and physical custody of W.L. The parties agreed that each

      parent would have parenting time with W.L. “every other day and night.”

      Appellant’s App. p. 14. The parties also agreed that “when the minor child

      attends pre-school, the parties agree that there shall be a hearing with regards to

      custody, parenting visitation, and support at that time.” Id. at 15. Both Mother


      Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 2 of 19
      and Father lived in Rushville and worked nights. The parties did not follow the

      dissolution decree’s every-other-day parenting time schedule because of their

      unusual work schedules.


[5]   In May 2012, Father moved from Rushville to Indianapolis. The parties

      attempted to maintain their parenting time arrangement despite the forty-five

      minute drive between Rushville and Indianapolis. However, the arrangement

      became contentious. In January 2013, Mother filed a petition to modify

      custody and child support. Mother alleged that Father had moved, that

      Father’s work schedule had changed, and that W.L. was in developmental and

      speech therapy. According to Mother, a modification of custody was in W.L.’s

      best interest, and the current joint legal and physical custody arrangement was

      no longer practical. Mother also filed a petition for contempt, alleging that

      Father had failed to file a Notice of Intent to Relocate prior to moving to

      Indianapolis and that Father had failed to pay his portion of uninsured

      healthcare costs and childcare costs.


[6]   In March 2013, Father filed a response to Mother’s petition for contempt, a

      petition for contempt against Mother, and a request for modification of

      custody. Father alleged that, since January 1, 2013, Mother had been “refusing

      to allow Father to see their son pursuant to the [established] visitation

      schedule,” and that Mother had failed to reimburse him for half of his health

      insurance premiums. Appellant’s App. pp. 22-23. Mother then filed another

      petition for contempt, alleging that Father was denying her parenting time.



      Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 3 of 19
[7]   In June 2013, Father filed another petition for contempt, alleging that Mother

      had wrongfully enrolled W.L. in preschool without Father’s consent. The trial

      court held a hearing and preliminarily ordered that the parties would continue

      to share joint physical and legal custody and revised the parenting time

      schedule with alternating weeks of parenting time and mid-week overnight

      visits with the other parent. The trial court ordered that W.L. would attend

      preschool at Rushville Elementary School, ordered mediation, and appointed a

      guardian ad litem if mediation was unsuccessful.


[8]   Mediation was unsuccessful, and the guardian ad litem prepared a report in

      December 2013, and the trial court held hearings on the modification and

      contempt petitions in December 2013 and January 2014. The trial court found:

             4.       Former Husband’s relocation to Indianapolis was a change in
                      circumstance so substantial and continuing it made the physical
                      custody/parenting time agreement unreasonable and adverse to
                      the best interests of the minor child.
             5.       The parties have been unable to agree on a reasonable
                      modification of parenting time even with the assistance of
                      mediation.
             6.       The parties appear to be loving parents when dealing directly
                      with the minor child; however when dealing with each other,
                      both parents have put their own preferences and agendas above
                      the best interests of the child.
             7.       Former Wife has not given Former Husband the kind of input
                      that would be anticipated in a situation of Joint Legal Custody.
                      Former Husband’s position as noted by his testimony that a
                      hearing should have been held prior to [W.L’s] enrollment in
                      preschool is certainly an option but at the least inconsistent
                      with the spirit of Joint Legal Custody.



      Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 4 of 19
             8.       Former Husband’s efforts to enforce the terms of the decree
                      emphasized the process more than the possible adverse affects
                      [sic] on the child.
             9.       Former Wife’s attitude has contributed to the problems of the
                      parties, but her actions have not usually had the potential
                      negative effects on the child to the degree of Former Husband’s
                      actions.
            10.       The work schedules of the parties have complicated the
                      parenting time issues, but it is the parents’ own issues that have
                      prevented a resolution to the problem.
            11.       The parties can no longer communicate and cooperate
                      adequately to allow the parties to have joint legal custody.
            12.       It is in the best interests of the child that Former Wife will have
                      sole legal custody of said minor child.
                                                   *****
            15.       Former Wife will give Former Husband an opportunity to
                      participate in all relevant decisions for the minor child and will
                      give due consideration to any suggestions of Former Husband.
                      Exchanges under this paragraph shall be made by e-mail.
            16.       Former Wife shall have sole physical custody of the minor
                      child subject to the parenting time schedule set out in this order.
      Appellant’s App. pp. 5-6. Although the trial court awarded Mother sole

      physical custody, the parenting time schedule was “set up to allow each parent

      close to equal time with the child, subject to the child’s evolving school

      schedules.” Id. at 7. The trial court also found: “Due to the parties’ unique

      work schedules, the nearly equal division of parenting time, [W.L.’s] current

      school schedule and [W.L’s] need for a structured consistent schedule the first

      right of refusal is suspended.” Id.


[9]   The trial court also ruled on Father’s petitions for contempt. The trial court

      denied the petitions except that it found Mother “in contempt of Court for not

      Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 5 of 19
       allowing Former Husband to have input on the issue of preschool enrollment

       contemplated by the status of joint legal custody.” Id. at 11. Although the trial

       court believed “Former Wife’s actions are contributing to an atmosphere that is

       unhealthy and not in the child’s best interests,” the trial court imposed no

       further sanctions. Id.


[10]   Father then filed a motion to correct error. Father argued that the trial court

       failed to weigh the factors of Indiana Code Section 31-17-2-8, that the trial court

       erred by awarding Mother sole legal custody and sole physical custody, that the

       parenting time schedule was erroneous, that the trial court erred by suspending

       the right of first refusal, that the trial court misinterpreted the dissolution

       decree, and that the trial court should have imposed sanctions on Mother for

       her contempt. Mother also filed a motion to correct error, arguing that the trial

       court had erred when calculating health insurance premiums. After a hearing,

       the trial court granted Mother’s motion to correct error and granted Father’s

       motion to correct error in part and denied Father’s motion to correct error in

       part. The trial court found that it made a mistake regarding the parenting time

       schedule and corrected that mistake. As for the remainder of Father’s

       arguments, the trial court denied his motion and found:

              6.       The Court found it was in the best interests of the child to grant
                       Mother sole legal custody after considering Mother and
                       Father’s inability to reasonably communicate[.]
              7.       The parties’ ability to reasonably communicate would be
                       considered a relevant factor to consider for legal custody under
                       I.C. 31-17-2-8.
                                                    *****

       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 6 of 19
              9.        It was the Court’s intent to grant Father the substantive benefits
                        of joint legal and physical custody without the technical aspects
                        the parties use against each other to the detriment of the child’s
                        best interests.
             10.        The Court was greatly concerned with its decision to suspend
                        first right of refusal. However, the Court considered the unique
                        facts of this case, the near equal division of parenting time and
                        the prior actions of the parties; and the Court concluded the
                        parties exercise of the first right of refusal would only be to the
                        detriment of the best interests of the child.
       Id. at 12-13 (citations omitted). Father now appeals.


                                                    Analysis
                                           I. Timeliness of Appeal

[11]   We begin by addressing Mother’s argument that we should dismiss this appeal

       because Father failed to file a timely motion to compel the completion of the

       transcript. The Court Reporter here filed a timely Notice of Completion of

       Transcript with the trial court clerk. Indiana Appellate Rule 10(D) then

       requires:

               If the Transcript has been requested but has not been filed when the
               trial court clerk or Administrative Agency issues its Notice of
               Completion of the Clerk’s Record, the trial court clerk or
               Administrative Agency shall issue and file a Notice of Completion of
               Transcript with the Clerk[1] and shall serve a copy on the parties to the
               appeal in accordance with Rule 24 within five (5) days after the Court
               Reporter files the Transcript.




       1
        The “Clerk” is the “Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court.” Ind. Appellate
       Rule 2(D).

       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015        Page 7 of 19
[12]   According to Mother, the trial court clerk did not file a Notice of Completion of

       Transcript with this court’s clerk within five days. Indiana Appellate Rule

       10(G) then provides:

               If the trial court clerk or Administrative Agency fails to issue, file, and
               serve a timely Notice of Completion of Transcript required by Rule
               10(D), the appellant shall seek an order from the Court on Appeal
               compelling the trial court clerk or Administrative Agency to issue, file
               and serve the Notice of Completion of Transcript. Failure of appellant
               to seek such an order not later than fifteen (15) days after the Notice of
               Completion of Transcript was due to have been issued, filed, and
               served shall subject the appeal to dismissal.
       Mother argues that Father did not request an order compelling the trial court

       clerk to file and serve the Notice of Completion of Transcript within fifteen

       days after the Notice was due.


[13]   Father notes that, even if the trial court clerk had timely filed its Notice of

       Completion of Transcript by November 5, 2014, Father’s brief would have been

       due on December 5, 2014. Father’s appellant’s brief was received by this court

       on December 5, 2014, and its deficiencies were cured and the brief was

       officially filed on December 19, 2014. “Because the court prefers to decide

       cases upon their merits, when violations are comparatively minor, are not a

       flagrant violation of the appellate rules, and there has not been a failure to make

       a good faith effort to substantially comply with those rules, the appeal will be

       allowed.” Cox v. Matthews, 901 N.E.2d 14, 19 (Ind. Ct. App. 2009). Given the

       minor violations of the appellate rules, we will address Father’s appeal. See also

       In Re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014) (holding that the Court would



       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 8 of 19
       address the appeal of a termination of parental rights despite the parent’s

       untimely notice of appeal).


                           II. Modification of Legal and Physical Custody

[14]   Father argues that the trial court abused its discretion when it modified the legal

       and physical custody of W.L. When the trial court enters findings sua sponte,

       the specific findings control only as to the issues they cover, while a general

       judgment standard applies to any issue upon which the court has not found.

       Julie C. v. Andrew C., 924 N.E.2d 1249, 1255 (Ind. Ct. App. 2010). The specific

       findings will not be set aside unless they are clearly erroneous, and we will

       affirm the general judgment on any legal theory supported by the evidence. Id.

       A finding is clearly erroneous when there are no facts or inferences drawn

       therefrom that support it. Id. at 1255-56. In reviewing the trial court’s findings,

       we neither reweigh the evidence nor judge the credibility of the witnesses. Id. at

       1256. Rather, we consider only the evidence and reasonable inferences drawn

       therefrom that support the findings. Id.


[15]   We review custody modifications for abuse of discretion, with a preference for

       granting latitude and deference to our trial judges in family law matters. Kirk v.

       Kirk, 770 N.E.2d 304, 307 (Ind. 2002). We set aside judgments only when they

       are clearly erroneous, and we will not substitute our own judgment if any

       evidence or legitimate inferences support the trial court’s judgment. The

       rationale for this deference is that:

               [Appellate courts] are in a poor position to look at a cold transcript of
               the record, and conclude that the trial judge, who saw the witnesses,
       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 9 of 19
               observed their demeanor, and scrutinized their testimony as it came
               from the witness stand, did not properly understand the significance of
               the evidence, or that he should have found its preponderance or the
               inferences therefrom to be different from what he did.
       Id. (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)).

       Therefore, on appeal it is not enough that the evidence might support some

       other conclusion; rather, the evidence must positively require the conclusion

       contended for by appellant before there is a basis for reversal. Id.


[16]   Father’s first argument concerns the relationship between the general custody

       modification statutes, Indiana Code chapter 31-17-2, and the relocation

       statutes, Indiana Code chapter 31-17-2.2. In a general custody modification

       case, the trial court “may not modify a child custody order unless: (1) the

       modification is in the best interests of the child; and (2) there is a substantial

       change in one (1) or more of the factors that the court may consider under

       section 8 . . . .” Ind. Code § 31-17-2-21(a). In making its determination, the

       trial court “shall consider the factors listed under section 8 of this chapter,”

       which 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:
                       (A)      the child’s parent or parents;
                       (B)      the child’s sibling; and
                       (C)      any other person who may significantly affect the child’s
                                best interests.


       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 10 of 19
               (5)     The child’s adjustment to the child’s:
                       (A)      home;
                       (B)      school; and
                       (C)      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 . . . .
       I.C. §§ 31-17-2-21(b); 31-17-2-8.


[17]   However, Indiana Code Section 31-17-2.2-1 provides that when a party moves

       to modify custody in response to the proposed relocation of the other parent,

       the trial court must take certain 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. . . .
               (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.



       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 11 of 19
[18]   Our supreme court has addressed the interplay between the modification of

       custody statutes and the relocation statutes. The court held that the relocation

       statutes incorporate all of the Indiana Code Section 31-17-2-8 considerations

       but also add some new ones. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind.

       2008). The court also held that “the fact of relocation alone does not of itself

       require a change in custody.” Id. at 1258.


[19]   In his motion to correct error, Father argued that the trial court failed to weigh

       the specific factors of Indiana Code Section 31-17-2-8. The trial court, in its

       order on the motion to correct error, noted that it found a change in custody

       was in W.L’s best interest and that the parties were unable to reasonably

       communicate. On appeal, Father argues that the trial court abused its

       discretion by failing to consider “the relocation factors under I.C. § 31-17-2-8.”

       Father does not specify exactly which factors that the trial court failed to

       consider. It is unclear whether Father is arguing that the trial court failed to

       consider the factors of Indiana Code Section 31-17-2-8 or the relocation factors

       of Indiana Code 31-17-2.2-1. Indiana Appellate Rule 46(A)(8)(a) requires that

       appellant’s contentions be supported by cogent reasoning. Father has failed to

       support his argument with cogent reasoning, and the issue is waived. See, e.g.,

       Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012) (“A party waives an

       issue where the party fails to develop a cogent argument or provide adequate

       citation to authority and portions of the record.”).


[20]   Waiver notwithstanding, Father relies on In re Paternity of J.J., 911 N.E.2d 725

       (Ind. Ct. App. 2009), where this court held that the pro se parties had failed to

       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 12 of 19
       present evidence on all of the relocation factors and the trial court had failed to

       “fully consider[]” the factors. We remanded for the trial court to hear evidence

       on the relocation factors. Here, the parties presented evidence on the relevant

       factors, the trial court issued findings, and in response to Father’s argument in

       his motion to correct error, the trial court specifically noted that it had

       considered the factors of Indiana Code Section 31-17-2-8. It does not appear

       that the parties requested findings here. “Absent a request by a party, the trial

       court does not have to enter special findings that specify which factor(s) has

       substantially changed and explain why a change in custody is in the best

       interests of the child.” In re Paternity of P.R., 940 N.E.2d 346, 351 (Ind. Ct. App.

       2010). We conclude that the trial court’s analysis was sufficient.


[21]   Next, Father argues that the trial court abused its discretion by modifying both

       physical and legal custody. As for physical custody, the trial court found that

       Father’s “relocation to Indianapolis was a change in circumstance so

       substantial and continuing it made the physical custody/parenting time

       agreement unreasonable and adverse to the best interests of the minor child.”

       Appellant’s App. p. 5. Father’s relocation from Rushville to Indianapolis made

       the frequent parenting time exchanges unrealistic. W.L.’s attendance at

       preschool, which was located in Rushville, was especially important given his

       therapy needs. W.L. was forced to travel between Rushville and Indianapolis

       many times each week, and the parties were unable to agree on a modified

       parenting time schedule. The parties’ unusual work schedules further

       complicated the situation. These facts implicate a substantial change in “[t]he


       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 13 of 19
       interaction and interrelationship of the child with . . . the child’s parent or

       parents” and “[t]he child’s adjustment to the child’s . . . home [and] school . . .

       .” I.C. § 31-17-2-8. We cannot say that the trial court abused its discretion by

       concluding that the current physical custody arrangement was not in W.L.’s

       best interest and that a substantial change in one or more of the factors had

       occurred.


[22]   As for legal custody, the trial court noted that the “parties can no longer

       communicate and cooperate adequately to allow the parties to have joint legal

       custody.” Appellant’s App. p. 6. One of the key considerations in joint legal

       custody is whether “the persons awarded joint custody are willing and able to

       communicate and cooperate in advancing the child’s welfare.” I.C. § 31-17-2-

       15. We have repeatedly held that joint custody is not appropriate “if the parties

       have made child-rearing a battleground.” Carmichael v. Siegel, 754 N.E.2d 619,

       635 (Ind. Ct. App. 2001). The testimony supports the trial court’s findings that

       both parents “have put their own preferences and agendas above the best

       interests of the child” and that the parents are no longer able to communicate

       and cooperate enough to have joint legal custody. Appellant’s App. p. 5.

       These facts also implicate a substantial change in “[t]he interaction and

       interrelationship of the child with . . . the child’s parent or parents” and “[t]he

       child’s adjustment to the child’s . . . home [and] school . . . .” I.C. § 31-17-2-8.

       The trial court’s modification of joint legal custody to Mother having sole legal

       custody was not an abuse of discretion.




       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 14 of 19
[23]   Father also takes issue with the trial court’s requirement that Mother release

       school and medical information to Father, communicate all relevant events to

       him, and give him the opportunity to participate in relevant decisions

       concerning W.L. According to Father, this is inconsistent with the

       modification of joint legal custody. Joint legal custody “means that the persons

       awarded joint custody will share authority and responsibility for the major

       decisions concerning the child’s upbringing, including the child’s education,

       health care, and religious training.” I.C. § 31-9-2-67. Under the trial court’s

       order, Mother and Father do not share authority and responsibility; rather,

       Mother has ultimate authority and responsibility for major decisions concerning

       W.L. However, the trial court required Mother to consider Father’s wishes and

       communicate important information to him. This appears to have been a

       courtesy granted to Father that is not inconsistent with its modification of joint

       legal custody.


                                         III. Right of First Refusal

[24]   Next, Father argues that the trial court abused its discretion by suspending the

       right of first refusal. Section I(C)(3) of the Indiana Parenting Time Guidelines

       provides:

               When it becomes necessary that a child be cared for by a person other
               than a parent or a responsible household family member, the parent
               needing the child care shall first offer the other parent the opportunity
               for additional parenting time, if providing the child care by the other
               parent is practical considering the time available and the distance
               between residences. The other parent is under no obligation to provide
               the child care. If the other parent elects to provide this care, it shall be
               done at no cost and without effecting [sic] child support. The parent
       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 15 of 19
               exercising additional parenting time shall provide the necessary
               transportation unless the parties otherwise agree.
               Commentary:
               The rule providing for opportunities for additional parenting time promotes the
               concept that a child receives greater benefit from being with a parent rather than
               a child care provider who is not a household family member. The household
               family member is defined as an adult person residing in the household, who is
               related to the child by blood, marriage or adoption. The rule is also intended to
               be practical. When a parent’s work schedule or other regular activities require
               hiring or arranging for a child care provider who is not a household family
               member, the other parent should be given the opportunity to provide the care.
               Distance, transportation or time may make the rule impractical. The period of
               absence which triggers the exchange will vary depending upon the
               circumstances of the parties. Parents should agree on the amount of child care
               time and the circumstances that require the offer be made. It is presumed that
               this rule applies in all cases which the guidelines cover; however, the parties or a
               trial court may, within discretion, determine that a deviation is necessary or
               appropriate. Any such deviation must be accompanied by a written
               explanation. See Shelton v. Shelton, 840 N.E.2d 835 (Ind. 2006).
               This section is sometimes mistakenly referred to as the “right of first refusal.” It
               is more accurate to refer to this section as an opportunity to exercise additional
               parenting time.
[25]   A significant source of disagreement between Father and Mother was the fact

       that Mother allowed her parents to spend the night at her house to care for

       W.L. on nights that Mother worked and had parenting time with W.L. Father

       wanted to have parenting time with W.L. during that time instead.


[26]   The trial court deviated from the Parenting Time Guidelines and concluded:

       “Due to the parties’ unique work schedules, the nearly equal division of

       parenting time, [W.L.’s] current school schedule and [W.L’s] need for a

       structured consistent schedule the first right of refusal is suspended.”




       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015     Page 16 of 19
       Appellant’s App. p. 7. Father raised this issue in his motion to correct error,

       and the trial court noted:

               The Court was greatly concerned with its decision to suspend first
               right of refusal. However, the Court considered the unique facts of this
               case, the near equal division of parenting time and the prior actions of
               the parties; and the Court concluded the parties exercise of the first
               right of refusal would only be to the detriment of the best interests of
               the child.
        Id. at 13.


[27]   The Preamble of the Parenting Time Guidelines notes that “[d]eviations from

       these Guidelines by either the parties or the court that result in parenting time

       less than the minimum time set forth below must be accompanied by a written

       explanation indicating why the deviation is necessary or appropriate in the

       case.” Ind. Parenting Time Guidelines Preamble(C)(3). The trial court issued a

       written explanation of its deviation. The Commentary to the Guideline even

       notes that “Distance, transportation or time may make the rule impractical.” Ind.

       Parenting Time Guideline I(C)(3), Commentary. The trial court was clearly

       concerned about the issue but chose a resolution that was in the best interest of

       W.L. given the distance between Mother and Father’s residences, the distance

       between Father’s residence and W.L.’s preschool, the parties unusual work

       schedules, and the parties’ inability to cooperate with each other. Under these

       circumstances, the trial court did not abuse its discretion by suspending Father’s

       right of first refusal.




       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 17 of 19
                                       IV. Parenting Time Schedule

[28]   Finally, Father argues that the trial court abused its discretion regarding the

       parenting time awarded to Father. According to Father, the parenting time

       schedule established by the trial court makes “the number of days that the child

       attends school determinative [of] the number of overnights Father sees his son.”

       Appellant’s Br. p. 19. The trial court noted that the parenting time schedule

       was “set up to allow each parent close to equal time with the child, subject to

       the child’s evolving school schedules.” Appellant’s App. p. 7.


[29]   The parenting time schedule created by the trial court provided Father with

       more parenting time than the minimum parenting time established by the

       Parenting Time Guidelines. The trial court attempted to maximize the parties’

       time with W.L., while also coordinating around their work schedules and

       W.L.’s preschool schedule and limiting W.L.’s time spent driving back and

       forth from Rushville to Indianapolis. Under the circumstances, we cannot say

       that the trial court abused its discretion.


                                                 Conclusion
[30]   We decline Mother’s request to dismiss Father’s appeal. However, we

       conclude that the trial court did not abuse its discretion regarding the

       modification of custody, suspension of the right of first refusal, and Father’s

       parenting time. We affirm.


[31]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 18 of 19
[32]   May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 70A01-1408-DR-332 | March 19, 2015   Page 19 of 19
