K.W. v. C.W. (mem. dec.)

MEMORANDUM DECISION 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. FILED Feb 26 2018, 6:39 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT Jonathan R. Deenik Deenik Law, LLC Greenwood, Indiana

IN THE COURT OF APPEALS OF INDIANA

K.W., February 26, 2018 Appellant-Respondent, Court of Appeals Case No. 41A01-1708-DR-1833 v. Appeal from the Johnson Superior Court C.W., The Honorable Eugene Stewart, Appellee-Petitioner. Senior Judge Trial Court Cause No. 41D02-1103-DR-175

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018 Page 1 of 14

Case Summary [1] Appellant-Respondent K.W. (“Father”) and Appellee-Petitioner C.W.

(“Mother”) are the parents of K.W., Jr. (“the Child”). After the parties’

divorce, Mother was granted custody of the Child and Father was awarded

parenting time pursuant to the Indiana Parenting Time Guidelines (“IPTG”).

On October 13, 2016, Mother filed a verified notice of intent to relocate to

Belton, Missouri, with the Child to which Father objected. Following a two-

day hearing on the matter, the trial court issued an order in which it granted

Mother permission to relocate to Missouri with the Child. Father appeals from

the trial court’s order. Finding no error in the trial court’s order, we affirm.

Facts and Procedural History [2] Mother and Father were previously married and are the parents of the Child.

The Child was born on January 26, 2006. The parties’ marriage was dissolved

by a divorce decree dated January 31, 2007. Following the parties’ divorce,

Mother was granted primary physical custody of the Child and Father was

granted parenting time pursuant to the IPTG. [3] The parties continued to reside in their respective residences in Franklin,

Indiana, following their divorce. In April of 2012, Mother sought and received

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permission to relocate to Milton, Kentucky, with the Child.1 Mother and the

Child returned to Franklin in May of 2014, after Mother’s employer added

Indiana to her sales territory. At some point, Father remarried and, in February

of 2016, moved to Noblesville. [4] On October 13, 2016, Mother filed a verified notice of intent to relocate with

the Child to Belton, Missouri.2 In this notice, Mother indicated that she wished

to relocate “because she is seeking promotion and greater financial opportunity

with her employer …as well as following God’s call to join the Gospel

Tabernacle Church … where she and [the Child] can thrive attending a good

church and associating with good people.” Appellant’s App. Vol. II, p. 14.

Mother proposed “a revised schedule of parenting time to be that which is

agreed upon by the parties, subject to the [IPTG] where [d]istance is a [f]actor.”

Appellant’s App. Vol. II, p. 14. On December 2, 2016, Father filed a verified

objection to the proposed relocation of the Child. [5] The trial court conducted a two-day hearing on the matter on May 22, 2017 and

June 26, 2017. On August 1, 2017, the trial court issued a detailed order

allowing Mother to relocate to Missouri with the Child. The trial court

1 Father did not object to the relocation to Kentucky and continued to exercise parenting time with the Child while the Child resided in Kentucky. 2 Mother acknowledged before the trial court that since the parties’ divorce, she has sought permission to relocate on a number of occasions. Mother indicated that these attempts to relocate were made for the purpose of securing better employment opportunities and that these opportunities would have enabled her to better provide for the Child. The record reveals that one such request was denied, one was withdrawn by Mother, and one was for the aforementioned move to Kentucky.

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specifically found that the evidence proved that the proposed relocation was

requested in good faith for a legitimate reason and that the relocation was in the

Child’s best interest. Father now appeals.

Discussion and Decision [6] Initially, we note that Mother has not filed an Appellee’s brief in this matter.

“When the appellee has failed to submit an answer brief we need not undertake the burden of developing an argument on the appellee’s behalf.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). “Rather, we will reverse the trial court’s judgment if the appellant’s brief presents a case of prima facie error.” Id. (citing Gibson v. City of Indpls., 242 Ind. 447, 448, 179 N.E.2d 291, 292 (1962)). “Prima facie error in this context is defined as, ‘at first sight, on first appearance, or on the face of it.’” Id. (citing Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)). “Where an appellant is unable to meet this burden, we will affirm.” Id.

Fifth Third Bank v. PNC Bank, 885 N.E.2d 52, 54 (Ind. Ct. App. 2008).

I. Standard of Review [7] The trial court entered findings of fact and conclusions of law pursuant to

Father’s request under 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 Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018 Page 4 of 14

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 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).…

“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). Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018 Page 5 of 14

II. Legal Standard for Relocation [8] Under the relocation statutes, a relocating parent must file a notice of intent to

relocate and send a copy of the notice to any nonrelocating parent. Ind. Code §

31-17-2.2-1(a). If a nonrelocating parent objects to the relocation of the child,

the parent must, not later than sixty days after the receipt of notice from the

relocating parent, file a motion in opposition to the motion to relocate. Ind.

Code § 31-17-2.2-5(a). [9] Once a nonrelocating parent has filed a motion in opposition to the relocation

of the child, “[o]n the request of either party, the court shall hold a full

evidentiary hearing to grant or deny a relocation motion[.]” Ind. Code § 31-17-

2.2-5(b). During this hearing, “[t]he 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 individual meets the

burden of proof under [Ind. Code § 31-17-2.2-5(c)], the burden shifts to the

nonrelocating parent to show that the proposed relocation is not in the best

interest of the child.” Ind. Code § 31-17-2.2-5(d). [10] In considering the proposed relocation, the trial court shall 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 Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018 Page 6 of 14

time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties.

(4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual’s contact with the child.

(5) The reasons provided by the:

(A) relocating individual for seeking relocation; and (B) nonrelocating parent for opposing the relocation of the child.

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

Ind. Code § 31-17-2.2-1(b).

III. Analysis [11] In challenging the trial court’s order allowing Mother to relocate with the

Child, Father contends that the trial court erred in finding that Mother’s

proposed relocation was being made for a legitimate purpose. Father

alternatively contends that even if the proposed relocation was being made for a

legitimate purpose, the trial court erred in finding that the proposed relocation

was in the Child’s best interests.

A. Legitimate Purpose [12] During the hearing, Mother indicated that her relocation to Belton, Missouri,

would afford her potential opportunities for advancement with her employer

that are not available to her in Indiana. At the time of the evidentiary hearing,

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Mother had been employed by Forberg Scientific, Inc. (“Forberg”) for

approximately five years. Mother worked in outside sales, covering the State of

Indiana. In relocating to Missouri, Mother would initially hold a similar sales

position with Forberg as she did in Indiana. Mother, however, would have

opportunities for advancement in Missouri and such opportunities are not

available to her in Indiana. [13] Mother indicated that she is “stagnant in her job” in Indiana and does not have

the potential for a promotion unless she relocates. Tr. Vol. II, p. 21. Mother

described multiple opportunities for advancement that would likely be available

to her with the next two or three years if she were to relocate to Missouri. She

also indicated that there were opportunities for advancement with Forberg’s

sister company in Missouri, although she would rather continue her

employment with Forberg. Mother wishes to stay with and advance within

Forberg because the company provides her the flexibility to set her schedule in a

manner that allows her to best care for the Child. [14] The trial court considered the evidence relating to Mother’s desire to advance

her career so to better provide financial flexibility for herself and the Child. The

trial court concluded that Mother’s proposed relocation is made in good faith

and for a legitimate purpose. In challenging the trial court’s conclusion, Father

does not dispute that Mother has employment opportunities available to her in

Missouri that are not available in Indiana. Father argues, however, that a

potential employment opportunity is not a legitimate reason for Mother to

relocate because Mother does not have a guaranteed offer of employment.

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Thus, Father asserts that Mother’s proposed relocation “is premised on pure

speculation.” Appellant’s Br. p. 14. [15] Contrary to Father’s assertion, the record reveals that Mother will have

employment following her relocation to Missouri. The only speculation is to

whether and how quickly Mother will advance in this employment. [16] In addition, Father points to no case law indicating that an opportunity for

career advancement is not a legitimate reason for a proposed relocation, and

relevant authority suggests otherwise. In T.L., the relocating parent indicated

that she wanted to relocate to Tennessee because she desired to be closer to

family and to take advantage of educational opportunities and career

advancement opportunities available to her in Tennessee. 950 N.E.2d at 787.

The relocating parent indicated that similar opportunities were not available to

her in Indiana for financial reasons. Id. at 782, 787. It was clear from the facts

of T.L. that the relocating parent had not obtained new employment but would

first have to take advantage of the educational opportunities available to her.

Id. at 782. Nevertheless, we concluded that the reasons provided by the

relocating parent were legitimate and made in good faith. Id. at 787. [17] In reaching this conclusion, we noted that “it is common in our society that

people move to live near family members, for financial reasons, or to obtain or

maintain employment. We infer that these and similar reasons … are what the

legislature intended in requiring that relocation be for legitimate and good faith

reasons.” Id. at 787–88 (quotation marks omitted). Here, Mother’s job

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prospects are more certain than those discussed in T.L. In this case, Mother

will have employment when she relocates and, upon relocation, will be in the

position to take advantage of opportunities for advancement and higher

compensation that are available to her in Missouri, but not Indiana. We

conclude that this reason was a legitimate reason for relocating.

B. Best Interests of the Child [18] With respect to the Child’s best interests, Mother indicated that she believes

that the proposed relocation would “enrich [her and the Child’s] lifestyles.” Tr.

Vol. II, p. 21. Mother noted that current conflict in her relationship with her

parents is not healthy for the Child. She also noted that she and the Child had a

nice lifestyle while they lived in Kentucky and were both “really happy.” Tr.

Vol. II, p. 21. She believes the same would be true in Missouri. [19] Mother and the Child already have friends and acquaintances in Missouri.

These friends and acquaintances include individuals who attend the church that

Mother wishes to attend and former and current co-workers of Mother and their

families. The Child enjoys his and Mother’s visits to Missouri and has “fit right

in.” Tr. Vol. II, p. 24. Mother indicated that the Child lights “up when he’s

there” and stated that she “want[s] that for him.” Tr. Vol. II, p. 24. [20] While Father claims that the Child is well-adjusted and has made a lot of

friends in Franklin, Father could not name any of these friends and admitted

that he and the Child “don’t talk about specific individuals.” Tr. Vol. II, p. 156.

Nothing in the record indicates that the Child would not also adjust well to life

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in Missouri and the record indicates that the Child, through monthly visits to

the area, has already begun to make friends there. [21] Historically, Father has not “exercise[d] full parenting time.” Tr. Vol. II, p. 11.

This is true both while the parties all lived in Franklin and since Father has

moved to Noblesville. Father sees the Child “on occasion” but never on a

consistent basis. Tr. Vol. II, p. 11. Mother indicated that she “never knew

when [Father] was going to see [the Child].” Tr. Vol. II, p. 11. In addition,

since Mother and the Child moved back to Franklin and Father relocated to

Noblesville, Father exercises parenting time “very rarely.” Tr. Vol. II, p. 13.

Mother noted that the quantity of Father’s parenting time increased when she

and the Child lived in Kentucky. She further indicated that she hoped that the

proposed relocation would result in an increase in Father’s parenting time as it

would allow Father to exercise parenting time pursuant to the IPTG where

distance is a factor. [22] For his part, Father asserted that his employment as a manager of a Walmart

store limits his ability to exercise regular parenting time. However, while it is

undisputed that Father’s employment limits the days he has available to

exercise parenting time, the record reveals that Father does not request to see

the Child on his days off. He has not displayed a desire or willingness to put

forth the effort to spend time with the Child in Franklin, to visit the Child’s

school, or to attend the Child’s activities.

Court of Appeals of Indiana | Memorandum Decision 41A01-1708-DR-1833 | February 26, 2018 Page 11 of 14 [23] Some of Mother’s friends testified during the evidentiary hearing about

Mother’s relationship with the Child. These friends have observed that Mother

and the Child are “very close” and have “a very loving and affectionate bond.”

Tr. Vol. II, p. 215. Mother and the Child are “always doing something activity

wise” together. Tr. Vol. II, p. 215. One friend specifically described Mother as

“a good parent, very stable.” Tr. Vol. II, p. 221. [24] Further, while Mother and the Child had previously maintained a close

relationship with her family, as of the date of the evidentiary hearing, such was

no longer the case. Mother testified that her prior decision to leave her parents’

church created a problem with her relationship with her parents, specifically,

her mother. Mother left her parents’ church because there were no children for

the Child to interact with and because she did not agree with some of the

church’s teachings. Mother testified that since leaving her parents’ church, she

has “been told that [she and her parents] don’t have a relationship because [she

does not] go to their church anymore.” Tr. Vol. II, p. 11. In further testifying

about her deteriorating relationship with her parents, Mother indicated that “all

[she] feel[s] there is [is] judgment and condemnation and [that she is] never

good enough.” Tr. Vol. II, p. 244. Given the evidence outlining Mother’s

deteriorating relationship with her parents, the trial court reasonably inferred

that the nature of Child’s relationship with his grandparents would be impacted

regardless of whether Mother and the Child relocated to Missouri. [25] Father does not dispute that the Child and Mother have a close bond and that

Mother serves as a stabilizing force in the Child’s life. Father argues, however,

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that relocation is not in the Child’s best interests because it will make it more

difficult for Father to maintain a close relationship with the Child and for the

Child to maintain a close relationship with other family members living in

Indiana, mainly Mother’s parents. The record reveals that Father’s actions

while the Child resided in Indiana negatively impacted Father’s ability to

maintain a close relationship with the Child. The trial court also specifically

found that the parties’ respective financial situations are such that it would not

be a financial burden to transport the Child between Missouri and Indiana for

visitation with Father either by vehicle or airplane. Further, as we discussed in

the paragraph above, the record also reveals that maternal grandparents’ access

to and relationship with the Child will be diminished regardless of whether

Mother and the Child reside in Missouri or Indiana. [26] Father also argues that while he may be entitled to more parenting time if

Mother and the Child were to relocate, this time would not be as consistent as

his parenting time if the Child were to remain in Indiana. The evidence

indicates, however, that Father was currently inconsistent with the exercise of

his parenting time with the Child. Father did not present any evidence

suggesting that the inconsistent nature of his exercise of parenting time with the

Child would change if Mother and the Child were to remain in Indiana. [27] Our review of the record reveals that Father has failed to take full advantage of

his parenting time opportunities while living in close proximity with the Child.

The evidence further demonstrates that the Child and Mother have a strong

bond. It seems that so long as the Child resides with Mother, the Child appears

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able to smoothly transition to different living environments. Mother and the

Child have already begun to build a sense of community in Missouri. One may

reasonably infer from the record that this sense of community would increase

following their permanent relocation to Missouri. Mother also has

opportunities for career advancement in Missouri. These opportunities would

provide her with a greater sense of financial freedom and enable her to better

provide for the Child. Thus, in light of our preference for granting latitude and

deference to our trial judges in family law matters, we conclude that the trial

court did not err in finding that relocation was in the Child’s best interests. [28] The judgment of the trial court is affirmed.

Robb, J., and Crone, J., concur.

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