MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Jul 17 2017, 8:56 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Lee Money                                             Daun Weliever
Greenwood, Indiana                                       Neal Bowling
                                                         Lewis Wagner, LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

G.H.,                                                    July 17, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         41A04-1701-DR-150
        v.                                               Appeal from the Johnson Circuit
                                                         Court
R.E.,                                                    The Honorable K. Mark Loyd,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         41C01-0906-DR-269



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017            Page 1 of 15
[1]   G.H. (Father) appeals from the trial court’s order permitting R.E. (Mother) to

      relocate to California with the parties’ children. Father argues that there is

      insufficient evidence supporting the order. Finding the evidence sufficient, we

      affirm.


                                                     Facts
[2]   Mother and Father were married in 1997. Two children were born of the

      marriage: J.H., born in September 2005, and R.H., born in April 2007. The

      parties’ marriage was dissolved in 2010, at which time Mother became the

      children’s primary legal and physical custodian, and Father was given parenting

      time pursuant to the Parenting Time Guidelines.


[3]   Since 2010, Mother has been the children’s primary caregiver. She has been

      heavily involved with the schools they have attended, has taken them to all

      medical appointments, and has supported their involvement with various

      extracurricular activities.


[4]   Shortly after the divorce, Father moved to another county, approximately sixty

      miles away from Mother and the children, because of an employment

      opportunity. Because of the distance, Father has not been as involved with the

      children’s schools, has never taken them to a medical appointment, and has not

      been involved with their extracurricular activities. He spends approximately

      three hours with the children each Thursday, and they spend every other




      Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 2 of 15
      weekend with him.1 They also speak on the phone most nights.

      Notwithstanding the distance, Father and both children are bonded and have

      close relationships.


[5]   Mother moved to Indiana in 1997 because of her marriage to Father. All of her

      extended family, including her parents, her sister, and her sister’s children, live

      in California. She has little to no support network in Indiana. Because of the

      lack of nearby support, Mother, who has a master’s degree in secondary

      education, has had to find employment that offers significant flexibility, but

      little income, so that she can be available for the children. While in Indiana,

      she has held various jobs. At the time of the hearing in this case, Mother was

      an independent consultant for Norwex, a company that distributes chemical-

      free cleaning supplies, and a writer for the Malvern Schools. Both jobs allow

      her to have a work schedule that works around the times she needs or wants to

      be available for the children. If she had more support, such as nearby family

      members who could help with childcare and step in if one of the children got

      sick, she would be able to find and maintain a job with higher income.


[6]   When Mother and Father divorced, Mother was unable to refinance the marital

      residence. Her parents liquidated part of a 401(k) account to provide her with

      sufficient funds to pay off the marital residence; as a result, she owes them




      1
       Under the parties’ agreement, Father is also permitted to have the children spend Sunday nights with him.
      But because of the distance between his house and the children’s school, it would be impractical for them to
      do so. Therefore, he has given up that right out of concern for their well-being, as well as his own ability to
      get to work in a timely fashion on Monday mornings.

      Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017                 Page 3 of 15
      $60,000. Her parents are aging and, while they still live independently and are

      mostly able to care for themselves, are reaching a point in time when they will

      need more help for things such as keeping the house clean and maintaining the

      lawn and landscaping.


[7]   On January 7, 2016, Mother filed a notice of her intent to relocate with the

      children to California. Father filed the requisite objection to the relocation, and

      a hearing was held on August 16 and October 25, 2016. At the hearing, Mother

      explained that if she and the children relocated to California, she planned to

      move in with her parents.2 This plan would enable her to provide help to her

      parents and would offer her free live-in childcare and more flexibility to find a

      job with a much higher income. She had not yet applied for any specific jobs

      because of the uncertainty surrounding the litigation, but would be able to

      maintain both her Norwex3 and Malvern jobs in California until she

      successfully found employment that paid more. The move would also enable

      her to sell the marital residence and repay her parents the money that she owed

      them.




      2
        There was some discussion at the hearing about a job that Mother had been interested in (but was filled by
      the time of the hearing) that would have been a two- to three-hour drive from her parents’ house. Mother
      explained that even if she had not been able to move in with her parents, that job would have provided
      sufficient income to allow her to maintain her own residence, and she would have been able to spend time
      helping her parents on the weekends. Regardless, at the time of the hearing, Mother’s intention and plan was
      to move in with her parents upon relocation.
      3
       The move to California would also afford Mother opportunities to dramatically expand her Norwex
      business.

      Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017             Page 4 of 15
[8]    Additionally, the move to California would provide the children with a close

       network of extended family members. While some of their extended family

       members on Father’s side of the family live in Indiana—indeed, a paternal aunt

       even lives across the street—they are not close to those family members and

       rarely, if ever, interact with them.


[9]    The children are doing well in their current school in Indiana, but school

       professionals testified that they have no concerns about the children’s respective

       abilities to transition to a new school environment. The school district in which

       Mother’s parents live is a well-regarded district with good schools; indeed,

       Mother and her sister both attended those schools themselves. The children

       would attend school with their cousins.


[10]   Mother and Father have an extremely contentious relationship that both have

       played a role in over the years. They have difficulty communicating in a

       respectful way and primarily do so over text messages. But Mother emphasizes

       that if she moves, she would continue to encourage the children to maintain a

       relationship with Father. Specifically, Mother proposes the following

       accommodations in the event of the children’s relocation:


           • Father would get ten weeks, instead of seven, with the children during
             summer breaks.
           • If Father’s spring break did not align with the children’s, he would get an
             additional week during the summer as compensation.
           • Father would get one full week at Christmas time.
           • The children and Father would have daily contact via phone or
             Facetime.
           • Mother would help Father with the cost of plane tickets.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 5 of 15
           • Mother would abate Father’s child support obligation.

       Tr. Vol. II p. 83-86.


[11]   On January 9, 2017, the trial court entered an order permitting the relocation of

       the children to California. Among other things, it found as follows:

               4.       [Mother]’s desire is motivated by a number of factors,
                        including:


                        i)      to reside with her folks . . . ;


                        ii)     to assist her elderly parents in maintaining their
                                residence and independence;


                        iii)    live-in free child care;


                        iv)     expanded job opportunities;


                        v)      other relatives that live nearby; and,


                        vi)     to use proceeds from sale of her house in Indiana to
                                reimburse her parents’ financial contributions.


                                                        ***


               7.       [Mother] has aptly demonstrated that her proposed
                        relocation is made in good faith and for legitimate
                        purposes. . . . [Mother]’s desire to be near a majority of her
                        family, to support her elderly parents, and to bolster her
                        financial opportunities are rational motivations in the
                        context of this family.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 6 of 15
                                                        ***


               9.       . . . As a result of the distance and his work schedule . . . ,
                        [Father] relies significantly on e-mail and telephonic
                        communication to maintain regular contact with the
                        children. In addition, he has opted to forgo his Sunday
                        overnights based upon his relocation.


               10.      . . . [Mother] . . . intends to live with her parents, and has
                        extended family support within that area. [Mother] has no
                        family in Indiana. While [Father]has family in Indiana
                        they are not close and do not regularly interact with the
                        children.


                                                        ***


               12.      [Mother] has historically been the primary care giver for
                        the children and has regularly attended to their mental and
                        physical healthcare, as well as educational needs. Further,
                        [Mother] has researched the children’s educational options
                        and circumstances upon relocation, and has a defined
                        transition plan.


               13.      Ultimately, [Father] has failed to establish that the
                        relocation is not in the children’s best interest.


       Appealed Order p. 1-3.


[12]   On January 24, 2017, Father filed a motion to stay the trial court’s order

       pending appeal. On January 30, 2017, the trial court denied the motion to stay,

       observing that the trial court had been “notified by [Mother] that she has begun

       implementing the relocation and has already enrolled the children in school in

       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 7 of 15
       the State of California and they are attending classes at this time. . . . [The]

       Court does not find it to be in the children’s best interest to interrupt their

       current educational activities awaiting resolution of the Appellate process.”

       Appellant’s App. p. 13. Father now appeals.


                                    Discussion and Decision
[13]   Father appeals the trial court’s order permitting Mother to relocate with the

       children. In reaching its decision, the trial court entered findings and

       conclusions, our review of which is well settled:


               Pursuant to Indiana Trial Rule 52(A), we do not “set aside the
               findings or judgment unless clearly erroneous, and due regard
               shall be given to the opportunity of the trial court to judge the
               credibility of witnesses.” Where, as here, the findings and
               conclusions are entered sua sponte, the specific findings control
               only as to the issues they cover, while a general judgment
               standard applies to any issue upon which the trial court has not
               found, and we may affirm a general judgment on any theory
               supported by the evidence adduced at trial.


       Miller v. Carpenter, 965 N.E.2d 104, 108-09 (Ind. Ct. App. 2012) (internal

       citation and some internal quotation marks omitted).


[14]   Our Supreme Court has “expressed a preference for granting latitude and

       deference to our trial judges in family law matters . . . because of trial judges’

       unique, direct interactions with the parties face-to-face.” T.L. v. J.L., 950

       N.E.2d 779, 784 (Ind. Ct. App. 2011) (internal citations and quotation marks

       omitted). Consequently, we do not substitute our judgment for that of the trial


       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 8 of 15
       court if evidence and legitimate inferences therefrom support the trial court’s

       judgment; this serves the interests of finality in custody matters. Baxendale v.

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


[15]   If a parent intends to relocate, she must file a notice of her intent to move with

       the court that issued the custody or parenting time order already in place. Ind.

       Code § 31-17-2.2-1(a). In response, the non-relocating parent may file a motion

       seeking a temporary or permanent order to prevent the relocation of the child.

       I.C. § 31-17-2.2-5. When such a motion is filed, a statutory burden-shifting

       analysis must be undertaken by the trial court:

               (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.


       Id.


[16]   There are a number of statutory factors that must be considered by the trial

       court that are set forth in Indiana Code section 31-17-2.2-1(b), but those factors

       apply only when the trial court must determine whether to modify a custody,

       parenting time, grandparent visitation, or child support order. Here, no such

       modifications are at issue; as such, we need not consider the factors set forth in

       that statute. Instead, we must simply determine whether the trial court properly

       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 9 of 15
       determined that Mother met her burden of proving that the relocation is made

       in good faith and for a legitimate reason and, if so, that Father failed to meet his

       burden of proof that the proposed relocation is not in the children’s best

       interests.


[17]   There is no real dispute as to whether Mother proposed the relocation in good

       faith. At no point does Father assert or imply that she had underhanded

       motives or unspoken reasons for the move, and indeed, the record would not

       support such an allegation. We find no evidence causing us to question the trial

       court’s finding that the proposed relocation is being made in good faith.


[18]   Father focuses, instead, on whether the trial court erroneously determined that

       Mother had a legitimate reason for the relocation. The trial court found that

       Mother had multiple reasons to seek the relocation, and each of these findings

       has support in the record.


           1. Mother wishes to live with her parents. See Tr. Vol. II p. 46, 70.
           2. Mother wishes to provide assistance to her parents in maintaining their
              residence and independence. See id. at 46-47, 72, 155.
           3. Mother wishes to take advantage of free live-in child care. See id. at 47.
           4. Mother hopes to take advantage of expanded job opportunities. See id. at
              49-50, 68, 70-71, 73.
           5. Mother wishes, both for herself and for the children, to live near her
              extended family. See id. at 46-47.
           6. Mother hopes to use proceeds from the sale of her home in Indiana to
              repay her parents. See id. at 69-70.




       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 10 of 15
       As there is evidence supporting each of these findings in the record, we must

       simply determine whether these findings support the trial court’s conclusion

       that Mother had one or more legitimate reasons for the relocation.


[19]   Mother’s reasons for moving can be separated into two basic categories:

       flexibility and finances; and family. With respect to flexibility and finances, it is

       undisputed that in Indiana, Mother has no family support and has been the

       children’s primary caregiver with little to no help with childcare, extracurricular

       activities, and the day-to-day job of raising happy, healthy children. As a result,

       she has had to take jobs for which she is overqualified and underpaid, so that

       she retains the flexibility she needs as primary caregiver. Unless a desirable job

       becomes available at a distance from her parents, Mother and the children plan

       to move in with them. In such a scenario, Mother would have live-in, free

       childcare. Furthermore, Mother’s parents, as well as her sister and her family,

       would be available as support if something unexpected, such as a child illness,

       came up. With this support, Mother will be free to look for jobs that may offer

       less flexibility but higher income.


[20]   With respect to family, Mother’s parents are aging. And while they are

       currently able to live independently and maintain their house and lawn, they

       will soon reach a point when they will need more help. Currently, Mother’s

       sister—who has five children of her own—bears the sole responsibility for

       providing help to their parents. Mother’s presence in California would help

       both her parents and her sister during the years when it will be most welcome.



       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 11 of 15
       Additionally, the children would benefit from proximity to an extended family

       that is undisputedly close, supportive, and loving.


[21]   We find that the record supports the trial court’s conclusion that these reasons,

       taken as a whole, are legitimate reasons for the proposed relocation. See Gold v.

       Weather, 14 N.E.3d 836, 842-43 (affirming trial court’s conclusion that Mother’s

       relocation, which occurred so she could be closer to her immediate and

       extended family, was done for a legitimate purpose). We acknowledge Father’s

       arguments that Mother does not yet have a job, that she cannot prove

       definitively that her income will increase upon relocation, and that her parents

       do not yet need assistance. Notwithstanding all of these unknowns, however,

       what is known is that in Indiana, Mother is parenting the children with no

       support; in California, she would have extensive family support, including free

       child care; in California, she would be able to help with the inevitable decline of

       her aging parents; and in California, her children would have a large and

       supportive family nearby, including cousins their own ages. We find that the

       trial court did not err by finding that these are legitimate, good faith reasons for

       the proposed relocation.


[22]   As such, the burden shifts to Father to prove that the relocation would not be in

       the children’s best interests. The trial court found that Father opposed the

       relocation for a number of reasons:

               i)       he fears it will impair his relationship with the children;

               ii)      he is without the financial means to travel to California;


       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 12 of 15
               iii)     the children will be denied close contact with he and his
                        family; and,

               iv)      [Mother] seeks to impede his relationship with the
                        children.


       Appealed Order p. 2. The understandable crux of all these reasons for Father’s

       opposition is a concern that the relocation will hamper his ability to maintain a

       close relationship with the children. That is a fair and worthy concern, and is

       often an unfortunate side effect of a parental relocation.


[23]   Even while the children are living in Indiana, however, Father’s distance from

       their home has caused him to be unable to be a daily presence in their lives, at

       their school, and at their extracurricular activities. We intend to cast no

       aspersions on his decision to move for reasons of employment, but one result of

       that move—even if the move was the right thing to do—was a lessening of his

       presence in their lives. The children are used to having much of their contact

       with Father in their nightly phone calls, and that will continue after they move

       to California. And while they will lose their weekly hours with him on

       Thursdays and bimonthly weekends with him, the children will be able to spend

       ten weeks with him during the summer, as well as time during spring and

       winter breaks from school. Indeed, the amount of parenting time he has with

       the children will remain the same—it will just occur in large, discrete blocks of

       time rather than smaller blocks on a regular basis. Of course this is not ideal,

       but that does not mean that the move is not in their best interests.




       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 13 of 15
[24]   Mother has promised to help with the cost of plane tickets and to abate Father’s

       child support obligation, which will ease any financial strain on Father. She

       has offered more summer parenting time to him than he would otherwise be

       entitled, and has promised daily phone or Facetime contact with the children.

       Mother and Father have a contentious relationship, and we acknowledge, as

       did the trial court, that at times she has impeded his relationship with the

       children. But there is no evidence of any such impediment since the trial court

       entered an order in a 2013 contempt proceeding. And we note, as did the trial

       court, that it is readily apparent from the record in this case that the

       contentiousness in the relationship, as well as the parties’ difficulties with

       communication, has been a two-way street for which both parents must share

       blame. That said, of course if Mother fails to comply with the terms of the trial

       court’s orders in the future, Father would again be free to file contempt

       proceedings. But at this time, there is no evidence supporting Father’s concern

       that Mother will impede his relationship with the children upon relocation.


[25]   As noted above, the relocation will offer the children a close and supportive

       extended family network. They will attend good schools with their cousins.

       They will be cared for by grandparents and their aunt and uncle, as well as the

       continued care provided by Mother. They will lose regular in-person contact

       with their Father, but will still be able to maintain a relationship with him over

       the phone every day and in person during school breaks. Given this record, we

       do not find that the trial court erred by concluding that Father did not meet his

       burden of proving that the relocation would not be in the children’s best


       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 14 of 15
       interests. Father’s arguments to the contrary amount to a request that we

       reweigh evidence and reassess witness credibility, which our standard of review

       does not permit.


[26]   The judgment of the trial court is affirmed.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017   Page 15 of 15
