Chelsea Burnett, Appellant-Petitioner v. Andrew Burnett, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] Since their separation and eventual divorce, Chelsea Burnett (Mother) and Andrew Burnett (Father) have shared legal and physical custody of their minor children, son K.B.¹ and daughter B.B.² (collectively, the Children). They share equal parenting time and live in the same neighborhood in Columbus, Indiana.

[2] Five months after entry of the dissolution decree, Mother filed a notice of intent to relocate to West Lafayette, Indiana, and proposed a change in parenting time that would substantially reduce Father's time with the Children. Father objected to the relocation. After a hearing, the trial court determined that Mother's proposed relocation was not in the best interests of the Children. The trial court ordered that if Mother relocates to West Lafayette, Father shall be awarded sole legal custody and primary physical custody, with Mother having parenting time pursuant to the Indiana Parenting Time Guidelines (the Guidelines) where distance is a factor. Mother appeals, arguing that the trial court erroneously determined that the proposed relocation was not in the Children's best interests.

[3] We affirm.

Facts & Procedural History

[4] Mother and Father were married in 2011 and initially raised the Children, along with Mother's older son, A., in Lafayette, Indiana. After experiencing infidelity in their marriage, they decided to relocate upon Mother's graduation from nursing school in May 2021 for “a fresh start” to try to work things out. Transcript at 35. They chose to move the family to Columbus to be closer to Mother's parents. K.B. and B.B. were around ten and seven years old, respectively, at the time of the move.

[5] In July 2023, Mother filed a petition to dissolve the marriage. The two had been separated since November 2021 and had been sharing equal custody of the Children while living in separate homes in the same Columbus neighborhood.³ Like the Children, A. moved between the two homes, as Father actively continued to parent and provide for him too.

[6] During the parties’ separation, Mother had a baby with Joshua Eads. Eads owns a four-bedroom home in West Lafayette, and he has three other minor children, two of whom are with him fifty percent of the time. Mother and the Children have stayed with Eads often since late 2021 or early 2022, and the Children have developed a bond with him and have friends in West Lafayette.

[7] The final dissolution hearing was held on October 31, 2023. Although Mother had told Father that she wanted to move to West Lafayette, she ultimately agreed to stay in Columbus and continue to share equal physical custody of the Children. At the hearing, the parties made the trial court aware of their agreement regarding custody, parenting time, and child support, among other things. Accordingly, on November 2, 2023, the trial court issued a dissolution decree consistent with the parties’ agreement.

[8] As relevant here, the dissolution decree provided for joint legal and shared physical custody of the Children and set out the following specifics:

7. The parties shall divide parenting time with the Petitioner having Sunday night beginning at 6:00 p.m., Monday night and Tuesday night, returning the children to school Wednesday morning, Respondent shall have Wednesday night and Thursday night, returning the children to school Friday morning. Petitioner shall then have the minor children from Friday after school until Sunday at 6:00 p.m. The next week the parenting time shall switch with the Respondent having Sunday at 6:00 p.m., Monday night and Tuesday night, returning the children to school Wednesday morning. Petitioner shall have Wednesday night and Thursday night, returning the children to school Friday morning. Respondent shall the[n] have the minor children from Friday after school until Sunday at 6:00 p.m.

8. The parties shall follow the normal parenting time schedule for the summer parenting time, however each, with sixty days notice[,] may have one week uninterrupted each summer for vacation.

9. The parties shall divide the holiday parenting time pursuant to the Indiana Parenting Time Guidelines, with the Petitioner designated as the “custodial” parent and the Respondent as the “non-custodial” parent, solely for determining the assignment of each holiday.

10. There shall be no child support as the parties have equal income and equal parenting time.

Appendix at 12-13.

[9] Less than five months later, on March 28, 2024, Mother filed a verified notice of intent to relocate from her home in Columbus to Eads's home in West Lafayette.⁴ She alleged in her notice that the intended move was “in good faith because of family support, increased educational opportunities for the children, better working and living arrangements, and an increase in income.” Id. at 15. Acknowledging that the move, which was nearly two hours away, would require a modification of the existing parenting time order, Mother proposed the following:

a. Parenting Time: Petitioner proposes that Respondent have three (3) weekends a month with the minor children. Specifically, the Petitioner proposes having Sunday night beginning at 6:00 p.m. through Friday morning, exchanging the minor children with Respondent on Friday at 6:00 PM. Respondent shall then have Friday night, Saturday night, and Sunday morning with the minor children. Respondent shall exchange the minor children with Petitioner on Sunday at 6:00 PM. The parenting time shall remain the same for the next two weekends. On the fourth weekend, the minor children shall remain with the Petitioner.

b. Transportation: Petitioner proposes that the parties meet to exchange the children at an agreed-upon location (i.e. business, restaurant, retailer, etc.) off Interstate 65 in Indianapolis, Indiana near Exit 121/Lafayette Road.

Id. at 16.

[10] Father filed a timely objection, asking the trial court to deny Mother's relocation request. He also filed a motion to modify “the current order as it pertains to custody, parenting time, and child support” and a motion for a hearing. Id. at 20.

[11] The trial court held a short evidentiary hearing on the pending matters on June 18, 2024. Mother testified that she believed the move to West Lafayette would be in the Children's best interests because they would be closer to her extended family, but she acknowledged on cross-examination that her siblings who lived there had not been very involved in the Children's lives. And though she claimed her father was planning to move back to Lafayette, he had not taken any steps to sell his home in Columbus.⁵ Mother acknowledged that the Children were happy living in Columbus and doing very well in school. In fact, B.B. had been selected for and was excited about a “leadership program” in the upcoming school year. Transcript at 18. Mother (and Eads) noted that the Children appeared to be more “outgoing with their friends” in Lafayette as compared to Columbus. Id. at 8.

[12] On cross-examination, Mother was asked about the days that she works in Indianapolis during her parenting time. Father was currently exercising additional parenting time after school on those days until about 8:30 or 9:00 in the evening, but if Mother relocates, Eads would be caring for the Children instead of Father on those days. When asked if this was in the Children's best interests, Mother initially responded, “Yes and no.” Id. at 20. The trial asked for clarification, and Mother then indicated that she did not believe that circumstance would be in the Children's best interests.

[13] Father testified that, in his opinion, the move would not be in the Children's best interests. When the issue of relocating had been brought up with the Children, Father observed that they were “quiet and upset[.]” Id. at 40. He testified that the Children were doing well in school and had friends in their Columbus neighborhood with whom they rode bikes and spent time at each other's homes.

[14] Further, Father explained that he did not want to lose time with the Children, whom he had at least half of the time under the existing order. When asked on cross-examination about his own ability to relocate closer to West Lafayette, Father testified, “I would never be able to find the flexibility and money wise pay grade that I make now here in Bartholomew County.”⁶ Id. at 45. In the event Mother moved to West Lafayette despite his objection, Father proposed that he become the Children's custodial parent and Mother have parenting time pursuant to the Guidelines.

[15] Father's co-worker and friend, Shalon Perez, testified that her family often socialized with Father and the Children (and sometimes A.). She described the Children as “very great kids” and Father as “a very patient dad, very loving, very fun loving[.]” Id. at 48. Perez had also filled in at work many times for Father when he had to unexpectedly leave due to the needs of the Children.

[16] At the conclusion of the hearing, the trial court found that the proposed relocation was made in good faith and for a legitimate reason – that is, Mother's desire to live with Eads. The trial court expressly rejected any other proffered reason for the move. Noting that it had considered all the statutory factors under Ind. Code § 31-17-2.2-1(c), the court then found that Father had established that relocation was not in the Children's best interests.

[17] Ultimately, the trial court ruled that if Mother chose to relocate to West Lafayette, the court would grant Father's petition to modify and find that it is in the Children's best interests for Father to have sole legal custody and primary physical custody, with Mother having parenting time pursuant to the Guidelines applicable where distance is a major factor. Further, in the event of relocation, Mother would be required to pay child support of $208 per week beginning the first Friday after her relocation. If Mother chose not to relocate, the existing order regarding custody, parenting time, and support, as set forth in the dissolution decree, would remain in effect.

[18] On June 25, 2024, the trial court entered its written order, which was drafted by Mother's attorney in accordance with the court's oral ruling. Mother now appeals.

Standard of Review

[19] In the absence of special findings, we review a trial court decision as a general judgment. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). Without reweighing the evidence or judging witness credibility, we will affirm if the judgment is sustainable on any legal theory consistent with the evidence. Id. Further, it is well established that “we give considerable latitude and deference to the decisions of our trial court judges in family law matters.” Pilkington v. Pilkington, 227 N.E.3d 885, 892 (Ind. Ct. App. 2024); see also Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (recognizing that “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”). Ultimately, it is not enough that the evidence might support a different conclusion; the evidence must positively require the conclusion contended for by the appellant. Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).

Discussion & Decision

[20] I.C. Chap. 31-17-2.2 governs the proposed relocation of a parent subject to parenting time or custody orders. Under certain circumstances, such as those present in this case, a parent intending to move residences must file a notice of that intention. I.C. § 31-17-2.2-1. The nonrelocating parent may object to the relocation within twenty days of being served with notice and file a motion seeking an order preventing the relocation and a motion for modification of custody, parenting time, and/or child support. I.C. § 31-17-2.2-5(a).

[21] At a hearing addressing the proposed relocation, the relocating parent has the initial burden of proving that the proposed relocation is “made in good faith and for a legitimate reason.” I.C. § 31-17-2.2-5(e). If the relocating parent meets this burden, “the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.” I.C. § 31-17-2.2-5(f).

[22] Here, the trial court determined that both parties met their respective burdens of proof. The only issue before us on appeal is whether the trial court abused its discretion by determining that Father established that Mother's proposed relocation was not in the Children's best interests. The trial court's determination in that regard was based on its consideration of the factors listed in I.C. § 31-17-2.2-1(c)⁷ :

(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.

“The reference to other factors includes those factors applicable in an initial custody determination as set out in I.C. § 31-17-2-8, such as, among other things, the child's age and sex, the child's relationship with parents, siblings, and others, and the child's adjustment to home, school, and the community.” Lynn, 157 N.E.3d at 26.

[23] In challenging the trial court's best interest determination, Mother asserts that “relocation was aimed at giving the children a better life: it would put them close to more family, better schools, and a better living environment.” Appellant's Brief at 10. She claims that “one of the primary drivers of her intent to relocate to West Lafayette is the planned relocation of her father, with whom she lives and on whom she relies heavily for support.” Id. at 13. And referencing her own testimony and that of Eads, she contends that the Children are “more positively engaged in West Lafayette.” Id. at 14.

[24] We reject Mother's request for us to reweigh the evidence and judge witness credibility. The evidence favorable to the judgment does not establish that the Children would have a better living environment in West Lafayette.⁸ They have friends in Columbus, are happy there, and are doing very well in school, with B.B. excited about an upcoming leadership program at school. And there is no evidence in the record to support Mother's claim on appeal that the schools in West Lafayette are better than in Columbus. Further, Mother acknowledged that her family living in or near West Lafayette had not been an active part of the Children's lives in the past and that her father still lived in Columbus and had not put his home on the market. The trial court's statements at the end of the hearing indicate that the court did not believe that Mother's move was motivated by anything other than living with Eads.

[25] The move would take the Children two hours away from Father and, most notably, drastically reduce his parenting time.⁹ Since the parties’ separation in November 2021, Father has lived in the same neighborhood as Mother and enjoyed equal parenting time with the Children (as well as A., Mother's older son). With his flexible job, he has been the parent who most often leaves work to care for the Children when they are sick or to take them to appointments. And he has exercised additional parenting time after school on Mother's days when she is working in Indianapolis, which time would be spent with Eads instead of Father if relocation were permitted – a result that Mother admitted would not be in the Children's best interests.

[26] There is ample evidence in the record supporting the trial court's determination that relocation would not be in the best interests of the Children. Accordingly, we affirm the trial court's denial of Mother's request to relocate them to West Lafayette.¹⁰

[27] Judgment affirmed.

FOOTNOTES

1.   Born in August 2010.

2.   Born in June 2014.

3.   Upon their separation, Mother stayed in the marital home, which was owned by her parents, and Father moved into a nearby rental home, where he has since remained.

4.   Mother planned to live with Eads and their combined seven children in Eads's four-bedroom home.

5.   Mother's mother had passed around the end of 2023.

6.   Father works in a salaried position for the Bartholomew County School Corporation. Due to the flexibility provided by his job, Father was the parent generally responsible for taking the Children to doctor's appointments and picking them up during the school day as needed.

7.   The statute provides that these factors shall be considered “in determining whether to modify a custody order, parenting time order, grandparent visitation order, or child support order” due to relocation. I.C. § 31-17-2.2-1(c). Our courts, however, have also applied these factors to the basic determination of whether relocation is in the child's best interests. Lynn v. Freeman, 157 N.E.3d 17, 26 (Ind. Ct. App. 2020) (citing a collection of cases including D.C. v. J.A.C., 977 N.E.2d 951, 955 (Ind. 2012)).

8.   Citing to a thirty-year-old case, Swonder v. Swonder, 642 N.E.2d 1376 (Ind. Ct. App. 1994), Mother suggests that Father was required to affirmatively prove that the move would adversely affect the Children or be detrimental to their welfare. Her argument, however, ignores that the holding in Swonder was based on statutory language that no longer exists and turned on the fact that the relocation was proposed by the custodial parent.

9.   Mother's reliance on Dixon v. Dixon, 982 N.E.2d 24 (Ind. Ct. App. 2013), is misplaced. That case involved the trial court's grant of a mother's request to relocate three hours away. Unlike the case at hand, the mother in Dixon had been the primary caretaker of the children since the parties’ separation, and her relocation with the children would not result in a reduction of father's parenting time.

10.   Mother does not separately challenge the modification of custody, parenting time, or support that the trial court ordered to occur if she decides to relocate to West Lafayette.

Altice, Chief Judge.

Judges Vaidik and Scheele concur. Vaidik, J. and Scheele, J., concur.