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.                    Jan 29 2014, 9:45 am




ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

CYNTHIA L. GARWOOD                                  DANIEL J. MOORE
Lafayette, Indiana                                  Laszynski & Moore
                                                    Lafayette, Indiana



                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF A.C.P-C,                     )
                                                    )
J.P.,                                               )
                                                    )
          Appellant-Respondent,                     )
                                                    )
                 vs.                                )       No. 79A02-1305-JP-423
                                                    )
J.H.C.,                                             )
                                                    )
          Appellee-Petitioner.                      )


                       APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                             The Honorable Randy J. Williams, Judge
                                  Cause No. 79D01-1209-JP-2


                                         January 29, 2014

                   MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
                                     CASE SUMMARY

       Appellant-Respondent J.P. (“Mother”) filed a notice of intent to relocate from

Tippecanoe County to Ann Arbor, Michigan with A.C.P-C. (the “Child”). Appellee-

Petitioner J.H.C. (“Father”) objected to and filed a motion to prevent relocation of the child,

which the trial court granted following an evidentiary hearing. Mother appeals. Upon

review, we conclude that Mother has shown good faith and legitimate reasons for proposing

the relocation, but that the trial court did not clearly err in finding that relocation was not in

the Child’s best interests. We also conclude that the trial court did not abuse its discretion in

admitting certain documents proffered by Father into evidence. Accordingly, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       Mother and Father met on a dating website in September of 2005. They have never

been married and are the biological parents of the Child. The Child was born on August 15,

2006. Shortly after the Child was born, Father initiated proceedings to establish paternity of

the Child. Father has been exercising overnight parenting time with the Child since the Child

was a baby.

       In early 2012, Mother met Kurt Parsch on a dating website. After meeting, Mother

and Parsch engaged in a romantic relationship and eventually decided to get married and

move in together. Mother and Parsch initially considered the possibility of Parsch moving to

Tippecanoe County, but eventually decided that Mother would move with the Child and her

daughter from a prior relationship to Parsch’s home in Ann Arbor, Michigan.

       In light of her desire to move with the Child to Ann Arbor, Mother filed a Notice of



                                                2
Intent to Relocate on January 28, 2013. Father objected to the relocation. On February 28,

2013, and March 6, 2013, the trial court conducted a two-day evidentiary hearing on

Mother’s request to relocate.

        At the time of the evidentiary hearing, Father was exercising overnight visitation

every Tuesday night and every other weekend. Father also exercised holiday and summer

visitation pursuant to the Indiana Parenting Time Guidelines. Father was employed by

Purdue University as a tenured distinguished professor, earning approximately $218,000 per

year. Mother was also employed by Purdue University, earning approximately $74,000 per

year.

        On April 11, 2013, the trial court entered an order denying Mother’s request to

relocate. This appeal follows.

                             DISCUSSION AND DECISION

                             I. Mother’s Request to Relocate

        Mother contends that the trial court erred in denying her request to relocate to Ann

Arbor with the Child.

                                  A. Standard of Review

        The trial court entered findings of facts and conclusions thereon pursuant to Indiana

Trial Rule 52(A). Our standard of review is well-settled:

               [W]e must first determine whether the record supports the
               factual findings, and then whether the findings support the
               judgment. On appeal, we will not set aside the findings or
               judgment unless they are clearly erroneous, and due regard shall
               be given to the opportunity of the trial court to judge the
               credibility of witnesses. We therefore consider only the evidence


                                              3
               favorable to the judgment and the reasonable inferences flowing
               therefrom, and we will neither reweigh the evidence nor assess
               witness credibility. A judgment is clearly erroneous when there
               is no evidence to support the findings, the findings do not
               support the judgment, or the trial court applies the wrong legal
               standard to properly found facts.
       M.S. v. C.S., 938 N.E.2d 278, 281-82 (Ind. Ct. App. 2010) (quotations and
       citations omitted). We may affirm the trial court on any legal theory supported
       by the factual findings even if the trial court used a different legal theory.
       Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind. 1998). Before affirming on a
       legal theory supported by the findings but not espoused by the trial court, we
       should be confident that our affirmance is consistent with all of the trial court’s
       factual findings and inferences reasonably drawn therefrom. Id. at 924.
               “In addition to the standard of review under Trial Rule 52, our supreme
       court has expressed a ‘preference for granting latitude and deference to our
       trial judges in family law matters.’” In re Paternity of Ba.S., 911 N.E.2d 1252,
       1254 (Ind. Ct. App. 2009) (quoting In re Marriage of Richardson, 622 N.E.2d
       178, 178 (Ind. 1993)). Our supreme court has recently re-emphasized this
       principle, stating that we afford such deference because of trial judges’
       “unique, direct interactions with the parties face-to-face.” Best v. Best, 941
       N.E.2d 499, 502 (Ind. 2011). “Thus enabled to assess credibility and character
       through both factual testimony and intuitive discernment, our trial judges are in
       a superior position to ascertain information and apply common sense,
       particularly in the determination of the best interests of the involved children.”
       Id.; see also Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). Therefore, we
       “will not substitute our own judgment if any evidence or legitimate inferences
       support the trial court’s judgment. The concern for finality in custody matters
       reinforces this doctrine.” Baxendale v. Raich, 878 N.E.2d 1252, 1257-58 (Ind.
       2008).

T.L. v. J.L., 950 N.E.2d 779, 783-84 (Ind. Ct. App. 2011).

                       B. Denial of Mother’s Request to Relocate

       Pursuant to Indiana Code section 31-7-2.2-1(a), “[a] relocating individual must file a

notice of the intent to move with the clerk of the court that: (1) issued the custody order or

parenting time order; or (2) … has jurisdiction over the legal proceedings concerning the

custody of or parenting time with a child; and send a copy of the notice to any nonrelocating



                                               4
individual.”

       A nonrelocating parent may object to relocation in either of two ways: by filing
       a motion to modify the custody order or by filing, within sixty days of receipt
       of the notice, a motion to prevent relocation of the child. Baxendale, 878
       N.E.2d at 1256 n.5; see Ind. Code § 31-17-2.2-5(a) (regarding motion to
       prevent relocation). Upon request of either party, the trial court shall hold a
       full evidentiary hearing to grant or deny a motion to prevent relocation of the
       child. Ind. Code § 31-17-2.2-5(b). “The relocating individual has the burden
       of proof that the proposed relocation is made in good faith and for a legitimate
       reason.” Ind. Code § 31-17-2.2-5(c). If the relocating parent meets that
       burden, “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(d).

T.L., 950 N.E.2d at 784.

       In determining whether to permit a relocation, the trial court shall take into account

the following:

       (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.

Ind. Code § 31-17-2.2-1. “The ‘other factors affecting the best interest of the child’ include,

by implication, the factors set forth for custody determinations and modifications under

Indiana Code section 31-17-2-8.[1]” T.L., 950 N.E.2d at 785 (citing Baxendale, 878 N.E.2d at


       1
           These factors include: (1) the age and sex of the child; (2) the wishes of the child’s parent or parents;

                                                         5
1257).

                   1. Whether Mother’s Relocation Request Was Made in
                         Good Faith and For a Legitimate Reason

         Mother claims that the trial court erroneously determined that she failed to prove that

her relocation request was made in good faith and for a legitimate reason. Specifically,

Mother challenges the trial court’s determination that her marriage to Parsch and decision to

move to Ann Arbor to live with Parsch did not present a legitimate reason for relocation of

Mother and the Child from Lafayette to Ann Arbor.

         As we noted in T.L., our body of case law has not explicitly set forth the meaning of

legitimate and good faith reasons in the relocation context. 950 N.E.2d at 787. However, we

observed that “it is common in our society that people move to live near family members, for

financial reasons, or to obtain or maintain employment.” Id. at 787-88. Thus, we inferred

that these and similar reasons are what the legislature intended in requiring that relocation be

for “legitimate” and “good faith” reasons. Id. at 88. We further noted that, as the relocation

statute provides and the Indiana Supreme Court has observed, the resolution of relocation

disputes ultimately turns on a judicial determination of the best interests of the child, part two

of the two-prong standard. Id. (citing Baxendale, 878 N.E.2d at 1256 n.5). “If part one, the

requirement of a legitimate and good faith reason, posed an inordinately high bar for a


(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 the child’s parent or parents, the
child’s sibling, and any other person who may significantly affect the child’s best interests; (5) the child’s
adjustment to the child’s home, school, and community; (6) the mental and physical health of all individuals
involved; (7) evidence of a pattern of domestic or family violence by either parent; and (8) evidence that the
child has been cared for by a de facto custodian. Ind. Code § 31-17-2-8.



                                                        6
relocating parent to meet, it could too often prevent trial courts from reaching part two and

appropriately deciding the dispute based on the best interests of the affected child.” Id.

       In the instant matter, the trial court concluded that while Mother’s decision to marry

Parsch may be in good faith, Mother failed to demonstrate that the proposed relocation was

made for a legitimate purpose. In making this determination, the trial court stated the

following: “Among other things, [Mother] has considered the temporary two (2) year

interests of her now step-daughter above the long-term interests of her son. Parsch is retired

and can relocate without disruption of his employment; his fifteen (15) year old daughter can

live with her mother and continue to play high school and club volley ball [sic] in Ann

Arbor.” Appellant’s App. pp. 13-14. Without determining whether the record supports the

trial court’s statement regarding Mother’s alleged act of putting the needs of her new step-

daughter above the Child or the possibility that Mother’s new step-daughter could live with

her mother if Parsch were to move to Indiana, we conclude that Mother’s stated reason for

her request to relocate to Ann Arbor with the Child, i.e., to live and create a family life with

Parsch was made in good faith and for a legitimate purpose. See In re the Paternity of X.A.S.,

928 N.E.2d 222 (Ind. Ct. App. 2010) (providing that the father presented a good faith and

legitimate reason for the proposed reason for relocation, i.e., he had recently married a

member of the U.S. Navy whose ship was docked in California, and he wished to relocate to

California to live with his new spouse).

       In sum, in light of its finding that Mother proposed relocation in order to live with

Parsch, we conclude that the trial court erred in its conclusion that Mother’s proposed



                                               7
relocation was not for a legitimate reason. However, our inquiry does not end there because

the trial court also determined that relocation was not in the Child’s best interests, a

determination which we now examine.

             2. Whether Relocation Was in the Best Interests of the Child

       Mother also claims that the trial court erred in determining that the requested

relocation was not in the Child’s best interests. We disagree. In determining that the

requested relocation was not in the Child’s best interests, the trial court heard evidence and

made factual findings regarding the distance involved in the proposed change of residence;

the significant decrease in parenting time available to Father; the unlikelihood that the close

nature of the relationship between the Child and Father would be preserved if relocation were

permitted; the interactions of the Child with his parents, his half-sister, and Father’s long-

time live-in girlfriend; and the Child’s adjustment to his home, school, and the community.

The trial court also considered the recommendations of the Child’s Guardian Ad Litem

(“GAL”) and the parties’ social worker regarding the Child’s best interests. When reviewing

a determination regarding the best interests of a child for relocation purposes, we “view the

evidence in a light most favorable to the trial court’s decision and defer to the trial court’s

weighing of the evidence.” T.L., 950 N.E.2d at 788-89.

                                   a. Distance Involved

       The trial court found that Mother planned to move from Tippecanoe County to Ann

Arbor, a distance of approximately 300 miles. During the evidentiary hearing, the parties

presented evidence that it was an approximately four-and-a-half to five-and-a-half-hour drive



                                              8
from Father’s home in Tippecanoe County to where Mother would be living in Ann Arbor.

In order to alleviate the burden of transporting the Child for visitation, Mother suggested that

the parties meet approximately half way between their homes in Fort Wayne. The trial court

properly considered this factor.

            b. Significant Decrease in Available Parenting Time and the
        Preservation of the Close Relationship Between the Child and Father

       The record indicates that at the time of the hearing, Father was exercising 132

overnight visits with the Child per year. Should the relocation have been granted, Mother

proposed a visitation schedule that would reduce Father’s overnight visits with the Child by

fifty-nine days, or by approximately forty-five percent. The trial court determined that the

current close relationship between the Child and Father could not be preserved given such a

dramatic reduction in Father’s time with the child, which would be reduced from visitation

on a weekly basis to one weekend per month. The trial court also heard evidence that the

relocation and resulting significant reduction in the amount of time that Father could spend

with the Child would be devastating for both Father and the Child.

       Mother does not dispute that there would be a significant reduction in the time that the

Child could physically spend with Father if she were permitted to relocate with the Child to

Ann Arbor. Mother merely challenges the trial court’s determination by claiming that Father

and the Child could preserve their current close relationship by communicating via telephone

and the internet. Mother’s challenge merely amounts to an invitation to reweigh the

evidence, which we will not do. See T.L., 950 N.E.2d at 783.

         c. The Child’s Relationships and Interactions with Family Members


                                               9
       It is undisputed that the Child has a close bond with both Mother and Father, and that

the Child has a close bond with his half-sister, who resides with Mother, and Father’s long-

term live-in girlfriend. The Child appears to benefit from each of these relationships as he is

a happy, well-adjusted, and thriving child. The record clearly demonstrates that both parents

love the Child and have played significant roles in his care and development. It is also

undisputed that neither Mother nor Father have any extended family living in the immediate

area. The trial court did not err in considering this factor.

               d. Child’s Adjustment to Home, School, and Community

       The trial court also heard evidence that the Child was well-adjusted to both Mother’s

and Father’s homes. In addition, the Child was enrolled and thriving in kindergarten at the

time of the evidentiary hearing, and the Child had begun to participate in tee ball and soccer

programs offered within the community. Mother argues that given the Child’s young age, it

is unlikely that he has established too strong of ties to his school or the community. Father,

on the other hand, argues that the Child has made friends and even had a “girlfriend” at

school. Tr. p. 296. The evidence supports the trial court’s finding that the Child seemed

well-adjusted to his surroundings, including his school and the community. Mother’s

challenge in this regard amounts to an invitation to reweigh the evidence, which again, we

will not do. See T.L., 950 N.E.2d at 783.

           e. Recommendation of the Court-Appointed Guardian Ad Litem

       Lisa Schrader, the court-appointed GAL, met with the parties and came to an opinion

about whether she believed that the proposed relocation was in the Child’s best interests.



                                              10
The GAL testified that although she believed it would be more traumatic for the Child to be

removed from Mother’s care and custody than to move to Ann Arbor, she believed that it was

in the Child’s best interests for the Child to continue to live in close proximity to both

parents. The GAL noted that both Mother and Father are good parents who love their son.

       The GAL’s opinion was also supported by the testimony of Theresa Slayton, a

licensed clinical social worker who was appointed to work with Mother and Father regarding

communication issues. Slayton testified generally about the importance of significant contact

between a father and a child. Slayton testified that research showed that substantial father-

child contact promotes positive overall developmental adjustment and well-being. Slayton

further testified that research shows that a sudden reduction of significant contact between a

father and a child often results in a more “formalized” relationship between the father and the

child and could lead to abandonment issues for the child. Tr. p. 10. Slayton also testified

that in cases where one parent lives far away from the child, the child often develops a

separate life from that parent. In such cases, visitation can become disruptive of the child’s

life because the child is often forced to choose between visiting the parent and engaging in

the child’s normal daily activities.

       With respect to the instant matter, Slayton noted that were the requested relocation

permitted, it would result in diminished involvement by Father and would likely become

disruptive of and have a negative impact on the established attachment and relationship

between Father and the Child. The trial court did not err in considering the testimony of the

GAL or Slayton.



                                              11
         f. Trial Court’s Determination Regarding the Child’s Best Interests

       Applying our standard of review, the issue is not whether we would have made the

same decision that the trial court made, but whether the trial court’s findings that are

supported by the evidence are sufficient to sustain its decision. T.L., 950 N.E.2d at 790.

Based upon our review of the record, we must answer this question affirmatively. Mother’s

challenge effectively amounts for an invitation for this court to reweigh the evidence

presented by the parties, an invitation which we decline. See id. at 789. As such, we

conclude that the trial court did not err in determining that the requested relocation was not in

the Child’s best interests.

                                 II. Admission of Evidence

       Mother also contends that the trial court abused its discretion in admitting certain legal

documents from the State of Virginia that were proffered by Father, relating to Parsch’s prior

criminal convictions and alleged history of fraudulent behavior. Specifically, Mother claims

that the trial court abused its discretion in admitting an unpublished appellate court decision,

an unauthenticated multi-count charging information, and numerous unauthenticated

pleadings from civil lawsuits.

              Our standard of review for rulings on the admissibility of evidence is
       essentially the same whether the challenge is made by a pre-trial motion to
       suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-
       75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the
       evidence, and we consider conflicting evidence most favorable to the trial
       court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
       trans. denied. We also consider uncontroverted evidence in the defendant’s
       favor. Id.

Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007). A trial court has broad discretion in


                                               12
ruling on the admissibility of evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct.

App. 2003) (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind. Ct. App. 2001)).

Accordingly, we will reverse a trial court’s ruling on the admissibility of evidence only when

the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273). An abuse of

discretion involves a decision that is clearly against the logic and effect of the facts and

circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093, 1095 (Ind. Ct.

App. 2000)).

              [E]rror in the admission of evidence will not warrant reversal unless a
       substantial right of the party is affected. Evid.R. 103(a). In a bench trial, the
       harm from any evidentiary error is lessened. Moran v. State, 604 N.E.2d 1258,
       1263 (Ind. Ct. App. 1992). In bench trials, we presume that the court
       disregarded inadmissible evidence and rendered its decision solely on the basis
       of relevant and probative evidence. Helton v. State, 624 N.E.2d 499, 513 (Ind.
       Ct. App. 1993), trans. denied, cert. denied, 520 U.S. 1119, 117 S.Ct. 1252, 137
       L.Ed.2d 333. Any harm from evidentiary error is lessened, if not completely
       annulled, when the trial is by the court sitting without a jury. Roop v. State,
       571 N.E.2d 568, 570 (Ind. Ct. App. 1991), trans. denied. Also, any error in the
       admission of evidence which is merely cumulative of evidence properly
       admitted is harmless. Wolfe v. State, 562 N.E.2d 414, 421 (Ind. 1990); Roop,
       571 N.E.2d at 570.

Roser v. Silvers, 698 N.E.2d 860, 864 (Ind. Ct. App. 1998).

       In the instant matter, we need not consider whether the challenged documents

constituted hearsay because the admission of the alleged hearsay was merely cumulative of

other unchallenged evidence regarding Parsch’s prior criminal convictions and alleged

history of fraudulent behavior. During the evidentiary hearing, Parsch testified that he had

previously committed criminal acts in Michigan and Virginia. His criminal acts in Virginia

resulted in convictions for securities violations. Parsch also testified that he had been



                                              13
involved in numerous civil lawsuits alleging fraud by Parsch. In addition, Mother testified

that she was aware of Parsch’s prior criminal convictions and alleged history of fraudulent

behavior. Mother further testified that she was aware that there is a website dedicated to

Parsch entitled “Kurt the Conman.” Tr. p. 140. As the present case was tried to the bench,

we conclude that, even if erroneous, the admission of the evidence in question was harmless.

See Roser, 698 N.E.2d at 864.

                                      CONCLUSION

       We concluded that Mother’s proposed relocation of the Child to Ann Arbor was in

good faith and for legitimate reasons. However, the evidence supports the trial court’s

conclusion that relocation was not in the Child’s best interest. As a result, the trial court’s

denial of Mother’s request to relocate the Child to Ann Arbor is not clearly erroneous.

Further, the trial court did not abuse its discretion in admitting the challenged documents as

the documents were cumulative of other unchallenged evidence and, accordingly, the

admission of the documents could at most be considered harmless. We therefore affirm the

trial court’s judgment.

       The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




                                              14
