Rudy Messer, Appellant-Petitioner v. Brittany Messer, Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] Rudy Messer (“Father”) challenges the denial of his request to modify child custody, parenting time, and child support of L.M. (“the Child”), his five-year-old child with Brittany Messer (“Mother”), where Mother relocated to a residence about eighteen miles farther away from Father's residence and the Child was not yet enrolled in school. Father presents the following restated issues for our review:

I. Whether the trial court failed to consider the Relocation Factors set forth in Indiana Code section 31-17-2.2-1(c) when considering his petition to modify child custody, parenting time, and child support (“the Petition”); and,

II. Whether the denial of the Petition was clearly erroneous.

[2] We affirm.

Facts and Procedural History

[3] Father and Mother (collectively, “the parents”) are the parents of the Child, who was born in February 2019. Upon the dissolution of their marriage on July 28, 2023, the parents shared joint legal custody of the Child with Mother having primary physical custody. The trial court ordered Father to pay $150 per week in child support, ordered “any non-contradictory provision of the [Indiana Parenting Time Guidelines (“IPTG”)] shall apply[,]” and ordered Father's parenting time shall be pursuant to the IPTG for a “child greater than 5 years of age and shall include Wednesday overnights as long as he can return [the Child] to the daycare provider prior to the bus arriving the next morning.” Appellant's App. Vol. II pp. 18, 19.

[4] In February 2024, Father filed a petition to modify the decree and a contempt petition. In May, the parties eventually resolved the pending matters by an agreement which was recited into the record and entered by the trial court as an order. The agreement provided Father an additional overnight with the Child each week, and provided, in relevant part, that Father “shall have Thursday overnight every week in addition to his weekly Wednesday overnight and every other weekend”; that the parents agreed to meet at a midway point to exchange the Child once school began in the fall; and that the parents shall keep each other apprised of changes to addresses, work locations, email addresses, and phone numbers. Id. at 20–21.

[5] On July 1, 2024, Mother moved with the Child from New Castle, Indiana, to Pierceton, Indiana. On July 11, 2024, Mother filed her Verified Notice of Intent to Relocate Pursuant to Indiana Code section 31-17-2.2. At that point, the Child was five years old and not yet enrolled in kindergarten, which she would start attending in the fall. On July 22, Father filed the Petition in response to Mother's notice, which included Father's “Objection to Relocation, Request for a Temporary Restraining Order Preventing Relocation, Petition to Modify Custody, Parenting Time, and Support, and Motion for Rule to Show Cause[.]” Id. at 24.

[6] On July 31, 2024, the trial court held a hearing on the matter where both parents testified. Mother explained that her move was for a better job with more consistent hours. See Tr. Vol. II p. 5. Mother's new job allowed her to “work with autistic kids ․ it's a healthcare facility. We do insurance and billing for sessions that we run to try to help the [c]hildren do like low-life coping skills to proceed into school.” Id. at 6. Moreover, she explained that in her previous job, she made fifty cents more per hour but had inconsistent hours of employment, but her new job provided consistent hours, where Mother would work forty hours a week. The new job also included health, dental, vision insurance, retirement benefits, childcare reimbursement, and a health savings plan. Mother acknowledged to having resided at four different residences within the last two years.

[7] Father testified to learning of Mother's relocation “three weeks ago” when he picked the Child up for his visitation and explained that Mother failed to communicate that she was considering moving. Id. at 33. Rather, Father explained Mother only disclosed that “she was looking for a new job.” Id. at 34. Father further explained Mother had not been forthcoming with her previous address changes. See id. at 37.

[8] Father testified that before Mother moved, they had discussed that Child would be attending school near Mother's former residence in New Castle and that he now preferred that Child be enrolled in school in his home school district. See Tr. Vol. II pp. 31–32, 38–39. Father also stated that the Child has friends in Father's neighborhood who are around her age that she plays with and that his sister-in-law, brother, niece and nephew, a cousin, and his mother all reside near Father. Ultimately, Father requested the trial court restrain the Child from relocating with Mother, grant him primary physical custody of the Child and modify the parenting time and his child support obligation as a result of the change in custody. See id. at 40–41. Finally, Father requested that Mother be held in contempt and for Mother to pay his attorney's fees.

[9] At the conclusion of the hearing, the trial court took the matter under advisement, and on August 9, 2024, the trial court entered its Court's Order On Combined Relocation Issues (“Order”), stating in relevant part:

1. A relocating individual's duty to provide notice is governed by I.C. [§] 31-17-2.2-1.

․

3. The evidence presented demonstrated that Mother's residence, prior to relocation, was fifty-five (55) miles from Father's.

4. The evidence presented demonstrated that Mother's residence, after the relocation, is seventy-three (73) miles from Father's.

5. The move did not result in an increase of more than twenty (20) miles in the distance between the relocating individual's residence and the non[-]relocating individual's residence.

6. I.C. 31-17-2.2-1(b)(2)(B) does not require the relocating individual to provide notice if the child is to remain enrolled in the child's current school. (Emphasis added)[.]

7. The child was not enrolled in school prior to this academic year.

8. The Court finds [Mother] was not required to give notice.

․

12. The Court did receive testimony regarding Modification of Custody, Parenting Time[,] and Support, predicated upon the “relocation.”

13. The Court does not find that said Modification of Custody, Parenting Time, and Support is in the [C]hild's best interest.

Appellant's App. Vol. II pp. 28, 29. The trial court denied Father's request for temporary and permanent orders prohibiting the Child from relocating with Mother, Father's request that Mother be held in contempt, and Father's request for attorney's fees. Finally, the trial court denied Father's request to modify custody, parenting time, and child support. Father now appeals.¹

Discussion and Decision

[10] Initially, we note that Mother failed to file an appellee's brief. Under the circumstances, “we will not undertake the burden of developing legal arguments on the appellee's behalf[ ]” and may instead “reverse if the appellant establishes prima facie error[.]” In re Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied. Prima facie error is “error at first sight, on first appearance, or on the face of it.” Id. Under this less-stringent standard of review, we remain “obligated to correctly apply the law to the facts in the record to determine whether reversal is required.” Ivankovic v. Ivankovic, 228 N.E.3d 1143, 1146 (Ind. Ct. App. 2024) (quoting Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind. Ct. App. 2014)).

[11] “In the absence of special findings, we review a trial court decision as a general judgment and, without reweighing evidence or considering witness credibility, affirm if sustainable upon any theory consistent with the evidence.” Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008) (quoting Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind. 1997) (citations omitted)). “Judgments in custody matters typically turn on essentially factual determinations and will be set aside only when they are clearly erroneous. 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.” Id. at 1257–58.

[12] “A negative judgment is one that was entered against [the] party bearing the burden of proof[,]” and on appeal, the party “appealing from a negative judgment must show that the evidence points unerringly to a conclusion different than that reached by the trial court.” Kotsopoulos v. Peters Broad. Eng'g, Inc., 962 N.E.2d 97, 105 (Ind. Ct. App. 2011). “We will reverse the negative judgment only where the decision of the trial court is contrary to law.” Id. “In determining whether a negative judgment is contrary to law, we neither reweigh evidence nor judge witness credibility.” In re Adoption of S.P., 172 N.E.3d 344, 351 (Ind. Ct. App. 2021). “Rather, we consider only the evidence most favorable to the prevailing party together with all reasonable inferences flowing therefrom.” Id.

I. Consideration of Relocation Factors

[13] Generally, Indiana Code section 31-17-2.2-1 (“the Relocation Statute”) requires a relocating party to provide notice to the non-relocating party of certain information relevant to the relocation prior to the relocation. See I.C. § 31-17-2.2-3. In response to the notice, the non-relocating party, in addition to a request to restrain the relocation of a child, may request modification of the current order of custody, parenting time, and child support. See I.C. § 31-17-2.2-5. A relocating party is exempt from filing a notice of intent to relocate if the relocation does not result in an increase of more than twenty miles between the relocating party and non-relocating party's residences and will allow the child to remain enrolled in the child's current school. I.C. § 31-17-2.2-1(b)(2)(B). Father does not challenge the trial court's finding that Mother was exempt from providing Father notice of her intent to relocate or the denial of Father's request to enjoin or restrain the Child from relocating with Mother. Father only appeals the trial court's denial of his request to modify custody, parenting time, and child support because of the relocation.

[14] The Relocation Statute provides that “[t]he court's authority to modify a custody order, parenting time order, grandparent visitation order, or child support order is not affected by the fact that a relocating individual is exempt from the requirement to file a notice of relocation by subsection (b).” I.C. § 31-17-2.2-1(c). Therefore, Father's Petition was properly before the trial court for consideration. Next, the Relocation Statute provides that a trial court shall take into account the following factors determining whether to modify custody, parenting time, or support due to a child's relocation:

(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.

I.C.§ 31-17-2.2-1(c) (“the Relocation Factors”).

[15] Father argues that the trial court erred because it failed to consider the Relocation Factors in evaluating the Petition. Specifically, Father argues that the trial court failed to consider: (1) the hardship and expense involved for Father to exercise parenting time with the Child (“the Parenting Time Factor”); (2) the feasibility of preserving Father and the Child's relationship through suitable parenting time (“the Relationship Factor”); and (3) Mother's established patterns of conduct to facilitate or thwart Father and the Child's relationship (“the Conduct Factor”).

[16] The Relocation Statute does not require the trial court to enter specific findings on each of the Relocation Factors. Father directs us to the case of In the Paternity of J.J., 911 N.E.2d 725, 731 (Ind. Ct. App. 2009), where a trial court's judgment modifying custody based upon a relocation was reversed and remanded where the trial court failed to consider all of the Relocation Factors. We find J.J. distinguishable. First, in J.J., the court had modified custody from the mother to the father based upon the mother's relocation; second, the parties were pro se; and third, scant evidence was presented to the trial court. Here, Father was represented by counsel and is appealing the denial of his request to modify custody, a negative judgment, where Father had the burden to present evidence to the trial court on each of the Relocation Factors. Finally, the trial court indicated that it received testimony regarding the modification of custody, parenting time, and support predicated upon the “relocation”. Appellant's App. Vol. II p. 29.

[17] Our review of the record reveals that Father failed to present evidence with respect to at least two of the Relocations Factors: the Parenting Time Factor and the Relationship Factor. Father presented no evidence of any additional expense or hardship he would incur to exercise parenting time as a result of the Child's relocation. The trial court did not modify any of the current orders related to parenting time or the party's agreement to meet at an agreed “midway point to exchange the child[.]” Id. at 20. Mother testified that based upon her move to Pierceton, the new midway point exchange location would result in Father driving sixteen additional minutes, with Mother driving forty-three minutes one-way and Father driving forty-two minutes one-way. See Tr. Vol. II p. 13; Respondent's Ex. A–D. However, Father failed to present any evidence as to how, or to what extent, traveling an additional sixteen minutes would create additional hardship or expense to Father. Likewise, Father also failed to present any evidence or testimony as to how the Child's relocation would affect the feasibility of preserving Father's parenting time. The only evidence in the record is that the current parenting time order would remain in place, meaning that there would be no detrimental effect upon Father's parenting time. To the extent Father claims the trial court failed to adequately consider the Parenting Time Factor and the Relationship Factor, it is based upon his own failure to present evidence on those factors.

[18] With respect to the Conduct Factor, Father points to Mother withholding parenting time from Father on one or two occasions in late January and early February 2024 that resulted in Father losing approximately one week of parenting time with the Child. See Tr. Vol. II p. 36. Mother explained that she withheld parenting time either because Father was unable to take the Child to the babysitter or due to a DCS investigation of Father's household. While the record is unclear as to the details of the DCS investigation, it does reveal that Mother's actions were specifically related to a DCS investigation that was promptly resolved and did not result in any further disruption of Father's parenting time. Additionally, the May agreement provided Father “a week of make-up parenting time from June 9th to June 16th[ ]” presumably to remedy Father's withheld parenting time. Appellant's App. Vol. II p. 20. Based upon this, we cannot say that Father fulfilled his burden to demonstrate that Mother's actions in withholding parenting time represented a pattern of conduct to thwart Father's contact with the Child.

[19] Based upon our review of the record, we do not conclude that the trial court failed to take into account the Relocation Factors where Father failed to present sufficient evidence of at least two of the factors for the trial court to consider.

II. Best Interests Factors

[20] Father next argues that the trial court's finding that it was in the best interests of the Child to deny Father's request to modify custody was not supported by the findings. Father specifically points to the “other factors affecting the best interest of the child”, which include the statutory factors a court is to consider when considering an initial custody order or modification of an order under Indiana Code section 31-17-2-8 (“the Best Interest Factor”). See Baxendale, 878 N.E.2d at 1256–57; I.C. 31-17-2.2-1(c)(6). With respect to the Best Interests Factor, Father simply requests that we reweigh the evidence. Father focuses on the evidence that is least favorable to the trial court's findings, in part, by directing us to evidence in the record that the Child does not have any family in Mother's new town and that the Child's maternal grandmother is now ninety minutes away from Mother's new home. Despite her move, Mother maintains regular visits with her mother, the Child's maternal grandmother, and Father has failed to explain how moving has had any material impact on the Child's relationship with any of Mother's other extended family. Father also points to the fact that he has extended family near his residence. However, Father fails to identify how Mother's move from New Castle to Pierceton affected the Child's relationship with Father's extended family. The evidence fails to demonstrate that Mother's move to Pierceton further isolated or removed the Child from contact with either Father's or Mother's extended families. Father asserts that the Child has neighborhood friends at his home and infers that based upon the move, she would not have friends at Mother's new home. However, the evidence fails to support this inference and Father's argument to the contrary amounts to nothing more than speculation.

[21] Father challenges Mother's stated motivation for moving. Father argues that because Mother's new job has a lower hourly rate than her prior job, the new job was not a “better” job and that Mother moved solely to be near her new boyfriend. Appellant's Br. p. 13. Again, Father directs us to only a portion of Mother's testimony. Rather, a complete review of the record reveals that despite having a lower hourly rate, Mother's new job offers her increased and more consistent hours, better benefits, including medical insurance and retirement, and is more fulfilling work. The new job allows Mother to work with autistic children, rather than in a factory position.² See Tr. Vol. II pp. 5–7, 10. Father simply asks us to reweigh the evidence, which we cannot do.

[22] Lastly, Father points to other considerations like: Mother's four recent moves within the last two years, and her unilaterally enrolling the Child in Mother's school district, as evidence that she thwarted Father's efforts to see the Child, violated her duties under the joint custody order, and otherwise failed to comply with the Court's prior orders. Again, Father only directs us to the least favorable evidence in the record. Rather, the evidence most favorable to the judgment reveals that Father never objected to any of Mother's prior moves, and there was no evidence that any of the moves were undertaken in order to deprive Father of his time with the Child. In the May 2024 agreement, Father secured additional parenting time with the Child and Father consented to Mother enrolling the Child in school at Mother's home district. Father fails to indicate how the Child attending school in Mother's new district is detrimental to the Child or otherwise inconsistent with his prior agreement. See Appellant's App. Vol. II p. 20. Finally, the trial court denied Father's contempt petition based upon Mother's failure to properly notify Father of her intent to relocate, which is an order that Father declined to appeal.

[23] We acknowledge that there will inevitably be some adjustments and changes as a result of Mother's move, but Father has failed to articulate how, as a result of those minor changes and adjustments, it is now in the Child's best interests to modify custody.

Conclusion

[24] All in all, based upon the record before us, we cannot conclude that the trial court failed to consider the Relocation Factors, and to the extent there was insufficient evidence of the factors before the court, it was Father's burden to produce evidence on those factors. Father failed to meet this burden. The trial court's finding that it was in the best interests of the Child to deny Father's request to modify custody, parenting time, and support is not clearly erroneous, and we, therefore, affirm.

[25] Affirmed.

FOOTNOTES

1.   Father does not appeal the trial court's denial of his request to restrain the Child from relocating with Mother, to hold Mother in contempt, and for attorney's fees.

2.   Mother has another child who has autism who is not involved in the present appeal. Tr. Vol. II p. 6.

Foley, Judge.

Judges Mathias and Felix concur. Mathias, J. and Felix, J., concur.