      MEMORANDUM DECISION
                                                                                 Mar 23 2015, 9:42 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.



      ATTORNEYS FOR APPELLANT
      William S. Frankel
      Anthony L. Holton
      Wilkinson, Goeller, Modesitt, Wilkinson
      & Drummy, LLP
      Terre Haute, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In re the Paternity of G.S.                              March 23, 2015
                                                               Court of Appeals Case No.
      A.H. (Mother),                                           84A04-1406-JP-261
                                                               Appeal from the Vigo Circuit Court
      Appellant-Petitioner,
                                                               The Honorable David R. Bolk,
              v.                                               Judge

      D.S. (Father),                                           The Honorable Daniel W. Kelly,
                                                               Magistrate
      Appellee-Respondent
                                                               Case No. 84C01-1105-JP-546



      Crone, Judge.


                                               Case Summary
[1]   A.H. (“Mother”) appeals the trial court’s modification of custody of her minor

      child, G.S., in favor of D.S. (“Father”). Mother was originally granted primary

      Court of Appeals of Indiana | Memorandum Decision 84A04-1406-JP-261 | March 23, 2015        Page 1 of 11
      custody of G.S. and Father was granted parenting time. In October 2013,

      Mother filed her notice of intent to relocate. Father objected to the move and

      filed a petition to modify custody. The trial court entered its order granting

      Father’s petition to modify and awarding primary custody of G.S. to Father.

      On appeal, Mother claims that the trial court abused its discretion because it

      failed to consider the proper statutory relocation factors in denying her request

      to relocate and granting Father’s petition to modify. Mother further asserts that

      the evidence does not support the trial court’s conclusion that relocation was

      not in G.S.’s best interests and that custody modification was warranted.

      Finding no abuse of discretion and sufficient evidence, we affirm.


                                 Facts and Procedural History
[2]   G.S. was born out of wedlock on March 10, 2009. Mother and Father signed a

      paternity affidavit at the hospital establishing Father’s paternity. The parties

      remained in a relationship and resided in Terre Haute after G.S.’s birth. That

      relationship eventually ended and the parties appeared in court for the first time

      on September 7, 2011, to establish parenting time and support. Father was

      ordered to pay child support and was granted visitation in accordance with the

      Indiana Parenting Time Guidelines. In its written order, the trial court

      specifically advised the parties regarding Indiana’s Relocation Statute, Indiana

      Code Section 31-17-2.2-1 et. seq., and the notice requirements involved if either

      parent was contemplating a move.


[3]   Five months later, Father filed a petition for temporary restraining order

      (“TRO”) to prevent Mother from relocating, without the proper statutory
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      notice, to Pekin, Illinois, in order to take a job at Cracker Barrel located in

      Bloomington, Illinois. The trial court granted the TRO and held a hearing on

      February 13, 2012. Following the hearing, Mother withdrew her request to

      relocate.


[4]   Two weeks later, Mother filed a new notice of her intent to relocate to Pekin.

      Father objected and the court conducted a lengthy hearing on April 24, 2012.

      The parties agreed to submit their dispute to mediation. When the parties failed

      to reach an agreement in mediation, the matter was again heard by the trial

      court on February 1 and 4, 2013. Thereafter, the court issued its order

      permitting Mother to move with G.S. as far as 100 miles from Terre Haute in

      order to accommodate her job opportunity with Cracker Barrel. The court

      acknowledged that although this would still require a forty-five-minute

      commute for Mother, the 100-mile limit on the move would allow Father to

      remain involved in G.S.’s activities as he had been consistently for the first

      three years of G.S.’s life. The court also warned, “If a move of a greater

      distance is made by Mother, custody shall be transferred to Father.” Appellant’s

      App. at 17.


[5]   On October 10, 2013, Mother filed yet another notice of her intent to relocate to

      Pekin. Mother claimed that while she had already moved within the 100-mile

      limit to Mahomet, Illinois, she still wanted to move farther to Pekin. Father

      timely filed his objection to the relocation and requested a modification of child

      custody from Mother to Father. An evidentiary hearing was held on April 11,

      2014. Father presented evidence to the trial court which indicated that Mother

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      was not actually living in Mahomet and had moved “for all intents and

      purposes” to Pekin with G.S. despite court orders forbidding her from doing so.

      Id. at 17.


[6]   The court concluded in relevant part,

              The court’s order of February, 2013 specifically stated that the 100-
              mile accommodation to Mother’s job at Cracker Barrel was to allow
              Father to be involved in [G.S.’s] school and extracurricular activities.
              Despite this, Mother enrolled [G.S.] in a preschool in Pekin and that
              very spring allowed her mother to enroll [G.S.] in a teeball league in
              Pekin and told Father nothing about it. Even had Father been so
              informed, as required by the [Indiana Parenting Time Guidelines], the
              three-hour distance from Father’s home would not allow Father, a
              former teeball coach to his older son, to watch any of the games.
              This is precisely the deprivation of parental involvement against which
              the court was attempting to protect Father by its order of February,
              2013.
              While the evidence regarding the fitness of each party to be the
              primary custodian of [G.S.] is mixed and conflicting, Father appears to
              be genuinely and consistently trying to remain fully involved in
              [G.S.’s] life, while Mother appears equally bent on living in Pekin
              where her mother resides – a distance of three hours away from
              Father, despite the court’s multiple rulings to the contrary.
              ….
              For all the foregoing, the court finds that there has been a substantial
              and continuing change in one or more factor[s] relative to custody and
              that it would be in the minor child’s best interests to be placed in the
              primary care of his father. Mother should be awarded parenting time
              in accordance with the Indiana Parenting Time Guidelines. If the
              Mother should choose to move back to Vigo County, Indiana, the
              scales could possibly be tipped back in her favor on the issue of
              primary custody, but having Father’s role in [G.S.’s] life continually
              diminished by Mother is not in the minor child’s best interests, and
              nothing short of this modification would appear to prevent this at this


      Court of Appeals of Indiana | Memorandum Decision 84A04-1406-JP-261 | March 23, 2015   Page 4 of 11
              time. Simply stated, [G.S.] is to be raised by his parents; not by his
              mother and grandmother.


      Id. at 18-19. Mother filed a motion to reconsider, which was denied by the trial

      court. This appeal followed.


                                     Discussion and Decision
[7]   Mother asserts that the trial court erred in granting Father’s petition for custody

      modification and awarding primary physical custody of G.S. to Father. Our

      standard of review is well settled.

              When reviewing a custody determination, we afford the trial court
              considerable deference as it is the trial court that observes the parties’
              conduct and demeanor and hears their testimonies. We review custody
              modifications for an abuse of discretion “with a preference for granting
              latitude and deference to our trial judges in family law matters.” We will
              not reweigh the evidence or judge the credibility of witnesses. Rather, we
              will reverse the trial court’s custody determination based only upon a trial
              court’s abuse of discretion that is “clearly against the logic and effect of
              the facts and circumstances or the reasonable inferences drawn
              therefrom.” “[I]t is not enough that the evidence might support some
              other conclusion, but it must positively require the conclusion contended
              for by the appellant before there is a basis for reversal.”

      In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012) (citations

      omitted), trans. denied.


[8]   Our preference for granting latitude and deference to our family-law trial judges

      is reinforced by the concern for finality in custody matters. See Baxendale v.

      Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008). Additionally, we accord this

      deference because trial courts directly interact with the parties and are in a

      superior position “to assess credibility and character through both factual

      Court of Appeals of Indiana | Memorandum Decision 84A04-1406-JP-261 | March 23, 2015   Page 5 of 11
       testimony and intuitive discernment.” Best v. Best, 941 N.E.2d 499, 502 (Ind.

       2011). Conversely, 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, observed their demeanor, and scrutinized their testimony as it came

       from the witness stand, did not properly understand the significance of the

       evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).


[9]    We note that Father failed to timely file a proper appellee’s brief. When an

       appellee fails to submit a brief on appeal, we apply a less stringent standard of

       review with respect to the showing necessary to establish reversible error. In re

       Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied. We

       may reverse if the appellant establishes prima facie error, which is an error at

       first sight, on first appearance, or on the face of it. Id. “Moreover, we will not

       undertake the burden of developing legal arguments on the appellee’s behalf.”

       Id. Nevertheless, even under this less stringent standard, we are obligated to

       correctly apply the law to the facts in the record to determine whether reversal

       is warranted. Tisdale v. Bolick, 978 N.E.2d 30, 34 (Ind. Ct. App. 2012).


[10]   The current custody modification stems from Father’s petition to modify child

       custody in response to Mother’s notice of intent to relocate. When a parent

       files a notice of intent to relocate, the nonrelocating parent may object by filing

       a motion to modify custody or to prevent the child’s relocation. Ind. Code §§

       31-17-2.2-1(b), 31-17-2.2-5(a). The Relocation Statute 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. Jarrell

       Court of Appeals of Indiana | Memorandum Decision 84A04-1406-JP-261 | March 23, 2015   Page 6 of 11
       v. Jarrell, 5 N.E.3d 1186, 1190 (Ind. Ct. App. 2014), trans. denied. Specifically,

       in considering a proposed relocation, the trial court must “take into account”

       the following factors:

               (1) The distance involved in the proposed change of residence.
               (2) The hardship and expense involved for the nonrelocating
               individual to exercise parenting time or grandparent visitation.
               (3) The feasibility of preserving the relationship between the
               nonrelocating individual and the child through suitable parenting time
               and grandparent visitation arrangements, including consideration of
               the financial circumstances of the parties.
               (4) Whether there is an established pattern of conduct by the relocating
               individual, including actions by the relocating individual to either
               promote or thwart a nonrelocating individual’s contact with the child.
               (5) The reasons provided by the:
                   (A) relocating individual for seeking relocation; and
                   (B) nonrelocating parent for opposing the relocation of the child.
               (6) Other factors affecting the best interest of the child.


[11]   Ind. Code § 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 a

       modification of that order, such as the child’s age and sex; the parents’ wishes;

       the child’s wishes; the child’s interaction and interrelationship with parents,

       siblings, and other persons affecting the child’s best interest; and the child’s

       adjustment to home, school, and the community. Ind. Code § 31-17-2-8. In

       contrast to a modification of child custody pursuant to the Modification Statute,

       Indiana Code Section 31-17-2-21, a relocation-based modification need not




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       involve a substantial change to one of the original best interest factors. Jarrell, 5

       N.E.3d at 1190 (citing Baxendale, 878 N.E.2d at 1256-57).


[12]   Accordingly, prior to granting a relocation-based petition to modify custody,

       the trial court is required to consider all the enumerated relocation factors listed

       in Indiana Code Section 31-17-2.2-1(b). In re Marriage of Harpenau, 17 N.E.3d

       342, 347 (Ind. Ct. App. 2014). Mother first claims that the trial court did not

       consider the proper statutory factors in making its ruling but instead considered

       this matter using a non-relocation custody modification framework. We

       acknowledge that while the trial court did reference the non-relocation custody

       modification standard in one of its findings,1 our review of the record and the

       trial court’s numerous other findings indicates that the trial court did in fact

       properly consider evidence relevant to each of the relocation factors. There is

       ample evidence in the record regarding: (1) the distance involved in Mother’s

       proposed change of residence; (2) the hardship and expense involved for Father

       to exercise parenting time; (3) the feasibility of preserving the relationship

       between Father and G.S.; (4) whether there is an established pattern of conduct

       by Mother to promote or thwart Father’s contact with G.S.; (5) the reasons

       each parent seeks or opposes the relocation; and (6) other factors affecting the

       best interest of G.S. While we understand that Mother may disagree with the




       1
         Specifically, the trial court found “that there has been a substantial and continuing change in one or more
       factor[s] relative to custody and that it would be in [G.S.’s] best interests to be placed in the primary care and
       custody of his father.” Appellant’s App. at 18. We fail to see how applying a more stringent standard
       requiring the finding of an additional element would inure to Mother’s disadvantage.

       Court of Appeals of Indiana | Memorandum Decision 84A04-1406-JP-261 | March 23, 2015                  Page 8 of 11
       weight of the evidence regarding each factor, her argument that the trial court

       wholly failed to consider evidence of the appropriate factors is without merit.


[13]   Mother maintains that even if the trial court considered the proper factors, the

       evidence does not support the trial court’s conclusion that relocation was not in

       G.S.’s best interests and that modification of custody was warranted. Where,

       as here, the non-relocating parent files a motion to prevent relocation, the

       relocating parent must prove “that the proposed relocation is made in good

       faith and for a legitimate reason.” Ind. Code § 31-17-2.2-5. If the relocating

       parent makes such a showing, “the burden shifts to the nonrelocating parent to

       show that the proposed relocation is not in the best interest of the child.” Id.


[14]   Because the trial court made no specific finding that Mother’s request to

       relocate to Pekin was not made in good faith or for a legitimate reason, 2 we will

       assume that Mother met her burden and focus on the trial court’s ultimate

       determination that relocation was not in G.S.’s best interest and that a change

       in custody was warranted. The evidence indicates that Mother’s relocation to

       Pekin would put G.S. almost three full hours away from Father. While Mother

       insists that the move would not impose any additional hardship and expense on

       Father to exercise his allotted parenting time, there is ample evidence in the

       record to support a conclusion that the move would greatly interfere with the




       2
         While the trial court acknowledged that Mother claimed that an employment opportunity was her reason
       for relocating to Pekin, the trial court clearly implied in its findings that it questioned Mother’s motives.
       Appellant’s App. at 18.

       Court of Appeals of Indiana | Memorandum Decision 84A04-1406-JP-261 | March 23, 2015               Page 9 of 11
       close relationship between Father and G.S. The trial court’s prior 100-mile

       relocation accommodation for Mother’s employment opportunity was an

       attempt to harmonize Mother’s desire to relocate with Father’s ability for

       parental involvement.


[15]   It is crystal clear from this record that Father desires, not simply the minimum

       parenting time, but to be actively involved in G.S.’s school and extracurricular

       activities. There was significant evidence presented to the trial court that

       Mother has disregarded prior court orders and has instead exhibited a

       consistent pattern of attempting to thwart Father’s relationship with G.S.

       Indeed, the trial court specifically found that Mother inappropriately used G.S.

       as leverage by threatening Father that she would allow him no additional

       parenting time with G.S. unless he consented to her relocation to Pekin.

       Appellant’s App. at 18. As noted, the trial court’s prior accommodation was an

       attempt to balance the parties’ competing desires in the best interest of G.S.,

       and the record shows that Mother has done much to upset that balance. Based

       upon the evidence, including its extended history in dealing with these parents,

       the trial court concluded that relocation was not in G.S.’s best interest and that

       custody modification was warranted.


[16]   “When reviewing a determination regarding the best interests of a child for

       relocation purposes, we ‘view the evidence in the light most favorable to the

       trial court’s decision and defer to the trial court’s weighing of the evidence.’”

       H.H. v. A.A., 3 N.E.3d 30, 37 (Ind. Ct. App. 2014) (quoting T.L. v. J.L., 950

       N.E.2d 779, 788-89 (Ind. Ct. App. 2011)). Considering the evidence favorable

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       to the trial court’s judgment and the reasonable inferences flowing therefrom,

       we cannot say that Mother has established prima facie error here. Mother

       essentially requests that we reweigh the evidence in her favor, a task not within

       our prerogative on appeal. The judgment of the trial court is affirmed.


[17]   Affirmed.


       Friedlander, J., and Kirsch, J., concur.




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