MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Dec 22 2015, 9:37 am
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
Patrick A. Duff
Duff Law, LLC
Evansville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                        December 22, 2015
S.G.,                                                    Court of Appeals Case No.
                                                         82A01-1504-JP-262
Woodson Goebel,                                          Appeal from the Vanderburgh
Appellant-Respondent,                                    Superior Court
                                                         The Honorable J. August Straus,
        v.                                               Magistrate
                                                         Trial Court Cause No.
Jessica Hardin,                                          82D01-0907-JP-413
Appellee-Petitioner.




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015       Page 1 of 14
                                       Statement of the Case
[1]   Woodson Goebel appeals the trial court’s grant of Jessica Hardin’s request to

      relocate to Montana with the parties’ child, S.G., and denial of Goebel’s

      Motion to Prevent Relocation and related Motion to Modify Custody. He

      raises two issues, which we consolidate and restate as follows: whether the trial

      court erred in determining that it was in S.G.’s best interest to remain in

      Hardin’s primary physical custody and relocate to Montana.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On March 8, 2009, at the age of fifteen, Hardin gave birth to the parties’ child,

      S.G. On July 6, Goebel filed an emergency petition to establish his paternity of

      S.G. In October of 2009 the trial court approved the parties’ Agreed Entry,

      which established Goebel’s paternity and otherwise provided that the parties

      would have joint custody of S.G., with Hardin as the primary custodian, and

      Goebel having parenting time pursuant to the Indiana Parenting Time

      Guidelines.


[4]   From the time of S.G.’s birth until approximately July 2013, the parties and

      S.G. lived together off and on at Hardin’s mother’s house in Evansville and

      shared child care duties. During that time period Goebel occasionally stayed at

      his grandparents’ house in Evansville for three to four months at a time, and

      S.G. frequently stayed overnight with them. In July 2013, Hardin obtained her

      own apartment in Evansville, where Goebel lived with her and S.G. off and on

      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015   Page 2 of 14
      until February 2014, when he relocated to Hobart to live with his aunt and

      mother. During the time Goebel lived at Hardin’s apartment, he cared for S.G.

      on his own on three occasions when Hardin went out of town for a week or two

      at a time. After relocating to Hobart, Goebel commuted to Evansville on a bi-

      weekly basis to continue exercising his parenting time with S.G.


[5]   In the summer of 2014, Goebel cared for S.G. on his own for several weeks

      while Hardin traveled to Montana to visit her fiancé, Ryan Bailey, who was in

      the Air Force. Hardin had met Bailey on an on-line dating site sometime in

      2013 and had daily contact with him through Skype over the next year while he

      was stationed in Japan. S.G. also had frequent contact with Bailey through

      “Skype,” although they had no physical contact prior to July 2014.


[6]   On July 24, 2014, Hardin filed her Notice of Intent to Relocate with S.G. to

      Great Falls, Montana to live with her fiancé, and to “try[] to get away from

      [her] son’s father.” Appellant’s App. at 11.              On September 18, 2014, Goebel

      filed his objection to Hardin’s notice of intent to relocate and requested a

      hearing. At a hearing on October 1, both parties agreed to submit to a drug test;

      Hardin’s test came back positive for marijuana. On October 21, Goebel filed a

      Motion to Modify Custody.


[7]   S.G. was a kindergartener at Cedar Hall Elementary School in Evansville

      during the 2014-15 school year. Hardin was responsible for getting S.G. to and

      from school. Hardin did not have a driver’s license or an automobile. During

      the first semester of the 2014-15 school year, S.G. had nine unexcused absences


      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015   Page 3 of 14
       from school, three excused absences, and thirteen tardies. School officials

       informed Hardin that S.G.’s attendance must improve or else the Indiana

       Department of Child Services would have to be notified.


[8]    Hardin and Bailey married in December 2014 on Hardin’s twenty-first birthday.

       That same month, Goebel’s parents cared for S.G. while Hardin was on

       vacation in Florida with Bailey and Goebel was working. Prior to the filing of

       Goebel’s objection to relocation, Hardin had been liberal in allowing Goebel

       visitation with S.G. beyond that required under the Indiana Parenting Time

       Guidelines.


[9]    The hearing on all pending motions took place on January 20 and February 25,

       2015. Goebel played for the court a tape-recorded telephone conversation with

       Hardin from September 2014 in which Hardin had stated to Goebel that she

       would not allow him or his mother visitation with S.G. until after the court

       proceedings on relocation. She also had stated in the recording that she would

       be blocking Goebel’s and his mother’s telephone numbers, stating, “You want

       to make my life a living hell[,] I’m gonna do the same thing.” Tr. at 158.

       Goebel did have parenting time with S.G. during the pendency of the court

       proceedings, but Hardin now did not allow Goebel anymore parenting time

       than the minimum required by the custody order and the Indiana Parenting

       Time Guidelines.


[10]   At the hearing, Hardin testified that she had been arrested in June 2013 for

       drinking alcohol under age. Goebel’s Exhibit B was a picture of Hardin


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       holding a beer in 2013, but Hardin testified that she had been using the beer as a

       prop for the picture and that she had not drunk any beer that day. Hardin

       testified that part of the reason she wished to relocate was to get S.G. away

       from Goebel. She also testified that Goebel had never paid child support for

       S.G. Hardin stated that Goebel’s visitation with S.G. had been infrequent until

       she filed the Notice of Intent to Relocate. She also testified that she does not

       smoke marijuana regularly and has never smoked in front of S.G. Hardin

       stated that she had obtained the marijuana she did smoke from Goebel, an

       allegation that Goebel denied. Hardin testified that she was willing for Goebel

       to have visitation with S.G. and that her husband, Bailey, would pay for S.G. to

       visit Goebel once a year. Bailey testified that he would also pay for Hardin and

       S.G. to come to Evansville for the summers.


[11]   There was evidence at the hearing that Hardin’s mother, Angela Waddell, who

       lives in Evansville, had frequent contact with S.G. and provided frequent care

       for him. There was also evidence that Goebel’s father, who lives in Evansville,

       had visitation with S.G. on occasion, and that Goebel’s mother, who lives in

       Porter, had frequent visitation with S.G. Goebel, his parents, and Hardin’s

       mother all testified that it would not be feasible for them to travel to Montana

       to continue frequent visitation with S.G. due to the distance and expense of

       travel. Goebel, his mother, and his Aunt, Brandy Powell, all testified that

       Goebel was a good father to S.G. and had a good father/son relationship with

       him.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015   Page 5 of 14
[12]   Hardin testified Goebel had been violent to her in the past, even in S.G.’s

       presence. Joseph Autry, Hardin’s friend, testified he had heard Goebel threaten

       Hardin in the past, had seen marks and bruises on Hardin, and had heard from

       Hardin that Goebel had been violent to her, including pushing her down a flight

       of stairs. Austin Douglas, a friend of Hardin’s brother, lived with Hardin and

       her mother and S.G. for a period of time in 2013 and testified that, during that

       time, he had witnessed Goebel and Hardin arguing and he had seen Goebel

       throw an ashtray at Hardin and shove Hardin. Goebel denied ever being

       violent to Hardin. Goebel also testified that, at some point after 2013, Hardin

       had physically attacked Goebel’s mother, Billy Jo Roughrock.


[13]   On March 4, 2015, the trial court issued its order granting Hardin’s request to

       relocate and denying Goebel’s objection to the proposed relocation and his

       motion to modify custody.1 The trial court ordered that primary physical

       custody remain with Hardin, that Goebel have parenting time pursuant to

       Section III of the Indiana Parenting Time Guidelines (“Parenting Time When

       Distance is a Major Factor”), and that Hardin pay for two-thirds of all




       1
         We note that the final order was issued by a magistrate, and was not approved by the superior court judge.
       Under Indiana law, magistrates do not have authority to issue final, appealable decisions in civil cases unless
       they are sitting as a judge pro tempore or special judge. Ind. Code § 33-23-5-5. However, “‘it has been the
       long-standing policy of th[e supreme] court to view the authority of the officer appointed to try a case not as
       affecting the jurisdiction of the court’ – and so ‘the failure of a party to object at trial to the authority of a
       court officer to enter a final appealable order waives the issue for appeal.’” B.B. v. B.C. (In re Adoption I.B.), 32
       N.E.3d 1164, 1173 (Ind. 2015) (quoting Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994)). As neither party has
       ever raised the issue of the magistrate’s authority in the instant case, it is waived on appeal and does not
       affect jurisdiction.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015                  Page 6 of 14
       reasonable expenses for S.G.’s required visitation with Goebel. This appeal

       ensued.


                                         Discussion and Decision
                                                   Standard of Review


[14]   Goebel argues that the trial court erred in determining that Hardin’s relocation

       and continued primary physical custody of S.G. were in S.G.’s best interest.

       Hardin has not filed an appellee’s brief.

                “Indiana courts have long applied a less stringent standard of
                review with respect to showings of reversible error when an
                appellee fails to file a brief.” McKinney v. McKinney, 820 N.E.2d
                682, 685 (Ind. Ct. App. 2005). Where no appellee’s brief has
                been filed, the judgment may be reversed if the appellant’s brief
                presents a prima facie case of error. Id. In this context, prima
                facie error is error at first sight, on first appearance, or on the face
                of it. Id.


       Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).


[15]   When the trial court does not make special findings, as the court did not here,2

       we review its decision as a general judgment. That is,

                the judgment will be affirmed if it can be sustained upon any
                legal theory consistent with the evidence. See Dierckman v. Area
                Planning Comm'n, 752 N.E.2d 99, 103 (Ind. Ct. App. 2001), trans.



       2
         In an action to modify custody, a trial court is not required to make special findings unless requested by a
       party. R.A.P. v. C.D.T. (In re Paternity of J.T.), 988 N.E.2d 398, 400 (Ind. Ct. App. 2013). Here, neither party
       requested special findings.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015              Page 7 of 14
                denied. In making this determination, we neither reweigh the
                evidence nor judge the credibility of witnesses. Id. Rather, we
                consider only the evidence most favorable to the judgment
                together with all reasonable inferences to be drawn therefrom.
                Id.


       Helmuth v. Distance Learning Systems Indiana, Inc., 837 N.E.2d 1085, 1089 (Ind.

       Ct. App. 2005).

                                  Relocation and Related Custody Modification


[16]   When a parent files a notice of intent to relocate, as Hardin did here, the non-

       relocating parent may object by filing a motion to prevent relocation and/or a

       motion to modify custody.3 Harpenau v. Harpenau (In re Marriage of Harpenau),

       17 N.E.3d 342, 346 (Ind. Ct. App. 2014) (citing Ind. Code §§ 31-17-2.2-1(b)

       (2015); 31-17-2.2-5 (2015)). The relocating parent then has the burden of

       proving that the relocation is made in good faith and for legitimate purposes.

       I.C. § 31-17-2.2-5(c). If the relocating parent meets that burden, then the

       burden shifts to the non-relocating parent to show that the proposed relocation

       is not in the best interest of the child. I.C. § 31-17-2.2-5(d). In considering a

       proposed relocation, the trial court must weigh the following statutory factors:




       3
         Goebel filed an objection to the relocation and a separate subsequent motion to modify custody.
       “If . . . 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 Interest Factors][of the custody
       modification statute], but add[ ] some new ones.’” Jarrell v. Jarrell, 5 N.E.3d 1186, 1192 (Ind. Ct. App. 2014)
       (emphasis original) (quoting Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008)), trans. denied. Therefore,
       we analyze Goebel’s objection to relocation and motion to modify custody together.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015               Page 8 of 14
        (1) The distance involved in the proposed change of residence.


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


        (3) The feasibility of preserving the relationship between the non-
        relocating 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 non-relocating
        individual’s contact with the child.


        (5) The reasons provided by the:


                (A) relocating individual for seeking relocation; and


                (B) non-relocating parent for opposing the relocation of the
                child.


        (6) Other factors affecting the best interest of the child.


I.C. § 31-17-2.2-1(b). The “[o]ther factors affecting the best interest of the

child” include the statutory factors relevant to an initial custody order or

modification thereof, such as the child’s age and sex; the parents’ wishes; the

child’s wishes; the child’s relationship with parents, siblings, and other persons

affecting the child’s best interests; and the child’s adjustment to home, school,

and the community. I.C. § 31-17-2-8; see also Baxendale v. Raich, 878 N.E.2d


Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015   Page 9 of 14
       1252, 1257 (Ind. 2008). However, 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 those “other factors” before modifying custody. D.C. v. J.A.C., 977

       N.E.2d 951, 954 (Ind. 2012) (citing Baxendale, 878 N.E.2d at 1257).


[17]   Here, the trial court’s decision that Hardin made her request for relocation in

       good faith and for legitimate reasons was supported by the evidence. Although

       there was some evidence that Hardin was motivated by a wish for herself and

       S.G. to “get away from” Goebel, Appellant’s App. at 11, there was also

       evidence that the main reason Hardin wished to relocate was because she had

       remarried and wanted to start a family life with her child and her new husband.

       Her husband is in the military and is currently stationed in Montana. There

       was evidence that he maintains a residence there and earns a salary that can

       support himself as well as Hardin and S.G. This evidence supports the trial

       court’s decision that Hardin wished to relocate in good faith and for legitimate

       reasons. See, e.g., H.H. v. A.A., 3 N.E.3d 30, 36 (Ind. Ct. App. 2014) (finding

       mother’s desire “to live and create a family life” with her new husband in

       Hawaii was a legitimate purpose). Goebel’s argument to the contrary is simply

       a request that we reweigh the evidence, which we will not do. Baxendale, 878

       N.E.2d at 1257-58.


[18]   Once the trial court found that Hardin’s request to relocate was made in good

       faith and for legitimate reasons, the burden switched to Goebel to prove that the

       proposed relocation, including Hardin’s continued primary physical custody of

       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015   Page 10 of 14
       S.G., was not in the child’s best interest. Goebel has failed to present a prima

       facie case that the trial court erred in ruling that relocation and Hardin’s related

       retention of primary physical custody of S.G. were in S.G.’s best interest.


[19]   The first factor to consider under the relocation statute is the distance of the

       proposed relocation. I.C. § 31-17-2.2-1(b)(1). There was evidence that the

       proposed relocation involves a significant distance; Hardin estimated it was

       about 1,000 miles between Indiana and Montana. There was also evidence that

       such a relocation will cause some hardship and additional expense for Goebel

       and his parents when they seek to exercise visitation rights with S.G. I.C. § 31-

       17-2.2-1(b)(2) (second factor is hardship and expense). Of course, “mere

       inconvenience to the child and non-custodial parent resulting from a change of

       residence will not constitute a basis for changing custody to the other parent.”

       Hoos v. Hoos, 562 N.E.2d 1292, 1294 (Ind. Ct. App. 1990). Rather, the trial

       court must look at all the surrounding circumstances to determine if the long

       distance relocation is in the child’s best interest. Id. Thus, we have previously

       held that relocation was in the child’s best interest where there was evidence

       that the relocating parent would pay to transport the child for long-distance

       visitation with the non-relocating parent, In re Paternity of X.A.S. v. S.K., 928

       N.E.2d 222, 226 (Ind. Ct. App. 2010), trans. denied, and where the parent-child

       relationship could be maintained long-distance through use of

       telecommunications in addition to in-person visitation, id.; see also Gold v.

       Weather, 14 N.E.3d 836, 845 (Ind. Ct. App. 2014) (relocation from Indiana to

       Georgia allowed because modern technology, in addition to in-person


       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015   Page 11 of 14
       visitation, made it feasible for the non-relocating parent to maintain a

       meaningful relationship with the child), trans. denied; Keitzman v. Keitzman, 992

       N.E.2d 946, 950 (Ind. Ct. App. 2013) (allowing relocation to China where the

       non-relocating parent’s relationship with the child could be preserved through

       use of telecommunications and exclusive parenting time during the child’s visits

       to the United States).


[20]   Here, Goebel’s main objections to relocation were the expense and

       inconvenience of traveling between Montana and Indiana for visitation and the

       feasibility of maintaining a close relationship with S.G. from such a long

       distance. However, there was evidence that Hardin and her husband agreed to

       pay for some of the traveling expenses of Goebel and S.G. when they travel for

       visitation, and the trial court ordered Hardin to do so for two-thirds of the

       traveling expenses. Moreover, telecommunications such as Skype, e-mail, text,

       and telephone calls can help preserve Goebel’s relationship with S.G. Id. Thus,

       evidence as to factors one through three of Indiana Code Section 31-17-2.2-1(b)

       support the trial court’s decision to grant the request for relocation with

       physical custody remaining with Hardin.


[21]   Goebel also failed to make a prima facie showing that any of the other factors

       in the relocation and modification of custody statutes required a denial of

       relocation and a related grant of modification of custody. As to factor four of

       Indiana Code Section 31-17-2.2-1(b), there was no evidence that Hardin had an

       “established pattern of conduct” of thwarting Goebel’s visitation. Although

       Hardin expressed some interest in removing herself and S.G. from Goebel and

       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015   Page 12 of 14
       had one time threatened to deny Goebel visitation, the evidence shows that she

       has never denied Goebel the visitation rights to which he was entitled under the

       parties’ custody agreement and the parenting time guidelines; rather, up until

       the court proceedings in this case, Hardin had granted Goebel parenting time

       with S.G. beyond that required by law. And Hardin testified that she would

       continue to allow Goebel parenting time pursuant to the guidelines.


[22]   As to the “[o]ther factors affecting the best interest of the child,” the evidence

       supports the trial court’s judgment that relocation is in S.G.’s best interest, and

       Goebel has failed to show otherwise. I.C. §§ 31-17-2.2-1(b), -2-8. The evidence

       showed that 1) Hardin has been S.G.’s primary care-taker since S.G.’s birth; 2)

       Hardin has married Bailey, who has sufficient resources to support her and

       S.G.; 3) Bailey has a steady job in the military; 4) S.G. knows Bailey by

       speaking to him through “Skype”; 4) Hardin and Bailey are willing to pay for a

       portion of the traveling expenses of Goebel and S.G. when they travel for

       visitation; and 5) Bailey is willing to pay for Hardin and S.G. to travel to spend

       summers in Indiana, which will allow both Goebel and S.G.’s grandparents to

       have additional, extensive visitation with S.G.


[23]   Still, Goebel alleges that Hardin’s past under-age drinking, her positive drug test

       for marijuana, and S.G.’s poor attendance at school are reasons to deny the

       relocation request and modify custody. However, this is quite clearly a request

       that we reweigh the evidence, which we cannot do. The question on appeal is

       whether there is evidentiary support for the trial court’s judgment, Baxendale,

       878 N.E.2d at 1257, and we hold that there is. Therefore, the trial court did not

       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-JP-262| December 22, 2015   Page 13 of 14
       err in granting Hardin’s request to relocate and denying Goebel’s relocation-

       based request to modify custody.


[24]   Affirmed.


       Riley, J., and May, J., concur.




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