MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Aug 24 2015, 8:48 am
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.



ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Andrea L. Ciobanu                                        Kathleen M. Sweeney
Alex Beeman                                              Sweeney Hayes, LLC
Ciobanu Law, PC                                          Indianapolis, Indiana
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kirsten L. Nolan,                                        August 24, 2015

Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A04-1412-DR-565
        v.                                               Appeal from the Marion Superior
                                                         Court;
                                                         The Honorable Patrick L. McCarty,
Matthew A. Huff,                                         Judge;
Appellee-Petitioner.                                     49D03-1209-DR-36714




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1412-DR-545 | August 24, 2015    Page 1 of 9
[1]   Kirsten L. Nolan (“Mother”) appeals the trial court’s modification of custody.

      As the trial court should not have modified custody without determining

      whether there was a substantial change in circumstances or whether the change

      of custody was in the best interest of the children, we reverse and remand.


                                 Facts and Procedural History
[2]   Mother and Matthew A. Huff (“Father”) were married on August 9, 2003.

      They had two children and were divorced on March 25, 2014. Prior to the final

      dissolution hearing, Mother requested permission to relocate from Indianapolis

      to Colorado, but the court did not approve relocation. The court approved the

      parties’ custody and visitation agreement that called for joint legal custody,

      primary physical custody with Mother, and weekly visitation for Father as

      follows:

              a.     Alternating weekends from Friday at 5:00 p.m. until Sunday at
              7:00 p.m.
              b.    On the weeks preceding [Father’s] alternating weekends,
              Tuesdays at 4:30 p.m. overnight until 8:00 a.m. on Wednesday
              morning;
              c.     On the weeks preceding [Mother’s] alternating weekends,
              Tuesdays from 4:30 p.m.-7:30 p.m. and Thursday from 4:30 p.m.
              overnight until 8:00 a.m. on Friday morning;
      (App. at 14.)


[3]   On May 12, 2014, after the decree was entered, Mother filed another notice of

      intent to relocate, this time from Indianapolis to Seymour, Indiana. Father

      filed a motion opposing relocation. At a hearing on her motion, Mother

      testified she would be moving in with her parents and possibly her boyfriend

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-DR-545 | August 24, 2015   Page 2 of 9
      (“Boyfriend”). 1 At the hearing, on June 6, 2014, Father submitted as Exhibit A,

      in the event Mother was allowed to relocate, a modified proposal for visitation

      that gave Father sixteen overnights per month and Mother fifteen. On

      November 10, 2014, the court granted Mother’s request to relocate, accepted

      Father’s proposal for visitation, and assigned Father primary physical custody. 2


                                          Discussion and Decision
[4]   “Child custody determinations fall within the sound discretion of the trial court,

      and the trial court’s determination will not be disturbed upon appeal absent a

      showing of abuse of that discretion.” Francies v. Francies, 759 N.E.2d 1106,

      1115-16 (Ind. Ct. App. 2001), trans. denied. As we review a trial court’s order to

      modify custody, we may not reweigh the evidence or judge the credibility of the

      witnesses. Green v. Green, 843 N.E.2d 23, 26 (Ind. Ct. App. 2006), trans. denied.

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

      inferences from that evidence. Id.


[5]   Mother argues the trial court abused its discretion because it did not find a

      substantial change in circumstances to warrant modification and did not find




      1
          The parties had previously stipulated Boyfriend would not be left unsupervised with the parties’ children.
      2
        The court found Mother in contempt for allowing Boyfriend to stay in the house. It stated the “nature and
      severity [of sanctions] will be determined by how well [Mother] abides by this Court’s orders, and whether
      parental alienation or other improper influence regarding the children continues to be an issue.” (App. at
      46.) The court ordered Father to remove his cats from his household because one of the children was allergic
      to cats.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-DR-545 | August 24, 2015                Page 3 of 9
      the modification was in the best interest of the children. 3 See Lamb v. Wenning,

      600 N.E.2d 96, 99 (Ind. 1992) (when the reviewing court cannot, with

      confidence, state what standard the trial court used to change custody, remand

      is justified).


[6]   Father argues that because of the way in which the relocation statute interacts

      with the custody modification statute, the trial court was not required to make

      such findings.


[7]   The chapter of the Indiana Code that controls the modification of custody

      provides:

                 (a) The 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 4 and, if applicable,
                          section 8.5 of this chapter.




      3
       Mother also asserts the court abused its discretion by changing custody sua sponte. The court did not change
      custody sua sponte. Pursuant to Trial Rule 15(B), if “issues not raised by the pleadings are tried by express or
      implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”
      See Higginbotham v. Higginbotham, 822 N.E.2d 609, 613 (Ind. Ct. App. 2004). The relocation statute states in
      pertinent part: “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, grandparent visitation order, or child support order.” Ind.
      Code § 31-17-2.2-1(b) (emphasis added). Mother impliedly consented to have custody considered at the
      hearing when she petitioned to relocate, and the court did not modify custody sua sponte. See Baxendale v.
      Raich, 878 N.E.2d, 1252, 1253 (Ind. 2008) (trial court may order a change of custody on relocation).
      4
          That section provides:

                 The court shall determine custody and enter a custody order in accordance with the best
                 interests of the child. In determining the best interests of the child, there is no
                 presumption favoring either parent. The court shall consider all relevant factors,
                 including the following:
                 (1) The age and sex of the child.
                 (2) The wishes of the child’s parent or parents.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-DR-545 | August 24, 2015                  Page 4 of 9
               (b) In making its determination, the court shall consider the factors
               listed under section 8 of this chapter.
               (c) The court shall not hear evidence on a matter occurring before the
               last custody proceeding between the parties unless the matter relates to
               a change in the factors relating to the best interests of the child as
               described by section 8 and, if applicable, section 8.5 of this chapter.
      Ind. Code § 31-17-2-21 (footnote added).


[8]   However, when one parent petitions to relocate and the other parent objects to

      relocation, the court must also consider other factors:

               (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.
      Ind. Code § 31-17-2.2-5. The court must take into account:

               (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 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.
              (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, and if the evidence
              is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
      Ind. Code § 31-17-2-8.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-DR-545 | August 24, 2015                      Page 5 of 9
               (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.
               (6) Other factors affecting the best interest of the child.
       Ind. Code § 31-17-2.2-1(b).


[9]    The relocation statute “is a self-contained chapter and does not by its terms

       refer to the general change of custody provisions.” Baxendale v. Raich, 878

       N.E.2d 1252, 1257 (Ind. 2008). It introduces new factors to be balanced while

       also requiring considering the best interest of the child. Id. The relocation

       statute “incorporates all of the Section 8 considerations, but adds some new

       ones. Because consideration of the new factors might at least theoretically

       change this balance, the current [relocation] statutory framework does not

       necessarily require a substantial change in one of the original Section 8 factors.”

       Id.


[10]   As the relocation statute permits the court to “consider relocation of a child as a

       factor in determining whether to modify a custody order,” Ind. Code 31-17-2.2-

       2(b), the court may “entertain a custody modification in the event of a

       significant proposed relocation without regard to any change in the Section 8


       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-DR-545 | August 24, 2015   Page 6 of 9
       factors.” Baxendale, 878 N.E.2d at 1257. “A custodial parent’s relocation,

       alone, will not support a modification of custody; rather, it is the effect of the

       move upon the child that renders a relocation substantial or inconsequential -

       i.e., against or in line with the child’s best interests - when determining whether

       to change custody.” Green, 843 N.E.2d at 27. Thus, to determine whether the

       court erred in modifying custody, we must review the court’s order and what

       factors it used to determine whether the relocation was “substantial or

       inconsequential – i.e. against or in line with the child’s best interests.” Id.


[11]   The pertinent parts of the order state:

                  4.      The most difficult and important issue is [Mother’s] request to
                  relocate the children to Seymour, Indiana. This is her second attempt
                  to leave Marion County; the other having been filed shortly before the
                  date of the final hearing. The first request was denied. This was due
                  in part to [Domestic Relations Counseling Bureau’s] recommendation
                  that [Father] receive parenting time in excess of the Guidelines, and
                  [Mother’s] request to move the children to Colorado, if granted, would
                  have resulted in a significant decrease in [Father’s] overnight visits.
                                                          *****
                  6.      As to [Mother’s] request to relocate, the marital residence
                  where she and the children now reside is listed for sale and will be
                  sold. [Mother] requested that she and the children relocate to
                  Seymour, Indiana, where her family resides and many of [Father’s]
                  family also reside. [Father] works in Edinburgh, Indiana, and many of
                  the exchanges throughout this process have taken place at his place of
                  business because the maternal grandmother, who is the principal
                  caregiver for the children, 5 resides in Seymour, Indiana. [Mother]
                  states that she will reside in her family home along with her parents,




       5
           The record indicates “principal caregiver” in this instance meant “daycare provider.”


       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-DR-545 | August 24, 2015       Page 7 of 9
               children, and with [Boyfriend] at some point in the future if the Court
               agrees to modify the prohibition against [Mother] and [Boyfriend]
               residing in the same household.
               7.      Having considered all the allegations and evidence presented
               regarding the relocation, the Court grants [Mother’s] petition to
               relocate to Seymour, but also accepts and orders [Father’s] custody
               and parenting time plan, as seen in his Exhibit “A” attached hereto.
               Given that [Father] will now have a greater number of overnights per
               month than [Mother], he now has primary physical custody. The
               parties are ordered to submit revised support worksheets within 10
               days.
       (App. at 44-46) (footnote added).


[12]   While the trial court did state it “considered all the allegations and evidence

       presented,” (App. at 45), it did not articulate what allegations and evidence

       were considered that would impact the best interests of the children. Our

       Supreme Court held, in Wilson v. Myers, 997 N.E.3d 338 (Ind. 2013), that

       although the trial court had mentioned “looking at ‘the whole picture’ in

       making its decision, . . . [the order] provided no insight into what was

       contained in that picture[.]” Id. at 341. This is analogous to the situation

       before us. Much testimony was heard by the trial court but nothing was

       reduced to writing.


[13]   While it seems apparent the move was made in good faith because the marital

       residence is either for sale or sold, that is merely the first step of consideration of

       a relocation request. See Ind. Code § 31-17-2.2-5. After good faith is

       established, the nonrelocating parent must show the move is not in the best

       interest of the children. Id. We cannot assume from the order entered that the

       court so found. We have no indication how the trial court applied any factors

       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-DR-545 | August 24, 2015   Page 8 of 9
       from either section 8 or the relocation statutes. By not providing a justification,

       the trial court abused its discretion when modifying custody, and we reverse

       and remand to the trial court to explain why Mother’s relocation requires a

       modification of custody. See Green, 843 N.E.2d at 28-29 (lack of explanation in

       the order of factors causing denial of modification of custody required reversal

       and remand).


                                                 Conclusion
[14]   As the trial court did not provide an explanation why it concluded a change of

       custody was required, we must reverse and remand for further findings.


[15]   Reversed and remanded.


       Crone, J., and Bradford, J., concur.




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