WILLIAMSON v. VAN BUREN (2021)

MEMORANDUM DECISION

Case Summary

[1] Scott Williamson (Father) appeals the trial court's order granting Kasey Van Buren's (Mother) request to relocate and petition to modify custody and denying his petition to modify custody of their son (Child). We affirm.

Facts and Procedural History 1

[2] Child was born in February 2016. Father and Mother's marriage was dissolved in December 2018. Pursuant to their agreed dissolution decree, they shared both legal and physical custody of Child. Both parties live and work and have extended family in the Warrick/Vanderburgh County area. After the dissolution, the parties lived in the same apartment complex in Newburgh. Mother met Nathaniel Van Buren, who is from Kalamazoo, Michigan; he moved in with Mother, and they later married. Father moved out of the apartment complex, moved into his own home, and then moved in with his prior ex-wife and her current husband and three children, including Father's daughter (and Child's half sister) A.W., who was born in November 2008.

[3] In January 2020, Mother filed a notice of intent to relocate and petition to modify custodial arrangements, parenting time, and child support, in which she stated that Van Buren had obtained employment in and moved back to Kalamazoo, where she wished to relocate with Child. In February 2020, Father filed an objection to relocation and petition to modify custody. Both parties requested a hearing, which the trial court held in July and October 2020.

[4] In November 2020, the court issued an order that reads in relevant part as follows:

1. The Mother met her burden of proof, pursuant to I.C. 31-17-2.2-5, that the proposed move to Michigan is made in good faith and for ․ legitimate reasons. The reasons include her marriage to her new husband who lives in Michigan and the opportunity to find new employment in Michigan.

2. The Father did not meet his burden of proof, pursuant to I.C. 31-17-2.2-5, that the proposed relocation is not in the best interest of the child.

3. The Court considered the factors under I.C. 31-17-2.2-1(b)(1) through I.C. 31-17-2.2-1(b)(6) in the determination of whether to grant the relocation, and whether to modify the custody order and parenting time order.

a. The distance is great, as the proposed move is to Michigan;

b. The Father will experience some hardship and expense to exercise parenting time. Much of the expense will be shouldered by the Father;

c. The Father is currently exercising regular parenting time with the child. The parenting time is shared (50/50) with four (4) days with the Mother, followed by four (4) days with the Father. The particular schedule is based on the Father's work schedule. The child moving to Michigan will drastically reduce the available parenting time days between the Father and child. There was ample evidence that the Father did not regularly take advantage of the parenting time available to him under the current order;

d. The Mother has valid reasons for wanting to relocate. The Father opposes the move because it will affect his parenting time;

e. The Court considered other factors affecting the best interest of the child, including the relationship and interaction between the child and the parties.

4. The Court considered all factors listed in I.C. 31-17-2-8 and I.C. 31-17-2-15 and states:

a. The distance of the proposed move is considerable. The drive time from the Father's home to the proposed address in Kalamazoo, Michigan is approximately six and a half (6 1/2) hours;

b. The Court considered [the] child's age, and that the child has yet to formally start school;

c. The Court considered the wishes of both parents;

d. The child has been cared for primarily by the Mother for the entirety of the child's life;

e. The child has developed a relationship with the Mother's new husband, and has had a chance to spend a significant amount of time with him and his children;

f. The child has significant familial attachments from both Mother's and Father's family in the Warrick County area. The only family in the Michigan area is the Mother's new husband's family.

5. Pursuant to I.C. 31-17-2-21, substantial changes have occurred since the last custody and parenting time order: a) The Mother is remarried; b) The Mother's husband has relocated near his hometown in Michigan for employment opportunities; c) The Mother desires to move to where her new husband resides; d) The Father has changed residences and currently lives with his ex-wife, his ex-wife's husband and numerous children of the three (3) adults residing in the home.

6. The Court finds it is in the best interests of the child that the Court grant the Mother's proposed relocation and modifies parenting time. The Court grants the Mother's relocation with the child.

7. The Court finds that it is in the best interests of the child that parenting time be modified. The Father shall have parenting time with the child pursuant to the Indiana Parenting Time Guidelines When Distance is a Major Factor and as specifically stated in this Order.

8. Custody shall remain joint legal custody.

Appealed Order at 1-2. Father now appeals.

Discussion and Decision

[5] Father contends that the trial court erred in granting Mother's petition to modify custody and denying his petition. “We review custody modifications only for an abuse of discretion.” McDaniel v. McDaniel, 150 N.E.3d 282, 288 (Ind. Ct. App. 2020), trans. denied. “There is a well-established preference in Indiana for granting significant latitude and deference to our trial judges in family law matters.” Id. “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.’ ” Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). “Therefore, on appeal we will not ‘reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.’ ” Id. (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)). “[I]t is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.” Kirk, 770 N.E.2d at 307. “It is not impossible to reverse a trial court's decision regarding child custody on appeal, but given our deferential standard of review, it is relatively rare.” Hecht v. Hecht, 142 N.E.3d 1022, 1029 (Ind. Ct. App. 2020).

[6] Where, as here, a trial court enters findings of fact and conclusions thereon sua sponte, the “findings control only with respect to the issues they cover, and the general judgment standard applies to issues upon which no findings were entered.” Madden v. Phelps, 152 N.E.3d 602, 611 (Ind. Ct. App. 2020). “[W]e consider whether the findings are supported by the evidence and whether the findings support the judgment.” Id. We will disregard a finding only “if it is clearly erroneous, meaning that there are no facts or inferences in the record to support it.” Id. “Matters falling under the general judgment standard are reviewed without reweighing evidence or considering witness credibility and may be affirmed upon any theory consistent with the evidence.” Id. “We presume that the trial court knows and will follow the law.” Major v. OEC-Diasonics, Inc., 743 N.E.2d 276, 284 (Ind. Ct. App. 2001), trans. denied. “The presumption that the trial court correctly followed the law is one of the strongest presumptions applicable to our consideration of a case on appeal.” Id.

[7] Indiana Code Chapter 31-17-2.2 “governs the proposed relocation of a parent subject to parenting time or custody orders or proceedings.” Lynn v. Freeman, 157 N.E.3d 17, 22 (Ind. Ct. App. 2020). “Under certain circumstances, such as those present in this case, a parent intending to move residences must file a notice of that intention.” Id. (citing Ind. Code §§ 31-17-2.2-1 and -3). The nonrelocating parent may, as Father did here, “state an objection to the relocation, file a motion requesting a temporary or permanent order preventing the relocation of the child and for a modification of custody, parenting time, or child support as a result of relocation, and request a hearing.” Id. (citing Ind. Code § 31-17-2.2-5(a)). “On the request of a party, the trial court is required to ‘hold a full evidentiary hearing to allow or restrain the relocation of the child and to review and modify, if appropriate, a custody order, parenting time order, [ ] or child support order.’ ” Id. (quoting Ind. Code § 31-17-2.2-5(d)). “At this hearing, the relocating parent has the initial burden to establish that ‘the proposed relocation is made in good faith and for a legitimate reason.’ ” Id. (quoting Ind. Code § 31-17-2.2-5(e)). “If that burden is met, the burden then shifts to the nonrelocating parent to show that the proposed relocation is not in the best interests of the child.” Id. (citing Ind. Code § 31-17-2.2-5(f)).

[8] Father does not challenge the trial court's finding that Mother established that her proposed relocation is made in good faith and for a legitimate reason. Instead, he asserts that the trial court abused its discretion in finding that he failed to show that the proposed relocation is not in Child's best interests. Indiana Code Section 31-17-2.2-1(c) provides that the trial court shall take the following into account in determining whether to modify a custody, parenting time, or child support order in response to a relocation request:

(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 [who may significantly affect the child's best interests], and the child's adjustment to home, school, and the community.” Lynn, 157 N.E.3d at 26.

[9] Father acknowledges the trial court's finding that it considered “all factors listed in” Indiana Code Section 31-17-2-8, but he insists that the court must have overlooked Child's relationship with his maternal grandmother and his half sister A.W. We disagree. Father disregards the trial court's additional finding that Child has “significant familial attachments from both Mother's and Father's family in the Warrick County area[,]” which obviously include his grandmother and A.W.² Father's argument is merely an invitation to reweigh the significance that the trial court placed on those attachments with respect to Child's best interests, which we may not do.

[10] Father also contends that the trial court abused its discretion in finding his change of residence to be a substantial change in circumstances pursuant to Indiana Code Section 31-17-2-21.³ Father notes that only three “children” live in his ex-wife's home, one of whom is his ex-wife's twenty-year-old daughter, who has acted as Child's in-home preschool teacher during the pandemic; the second child is his ex-wife's fifteen-year-old son; and the third child is Child's half sister A.W. Father further notes that he moved into the home temporarily due to the financial burden of this litigation, that the home has six bedrooms and three bathrooms, and that Child has his own bedroom. Father's positive portrayal of his current living arrangements does not alter the fact that they constitute a substantial change from his prior living situation. In other words, for purposes of Section 31-17-2-21, a change need not be detrimental; it need only be substantial, and the trial court did not abuse its discretion in finding a substantial change in this instance. Moreover, as Mother aptly observes, the trial court found several substantial changes and did not indicate that it weighted one more heavily than the others. Consequently, we affirm the trial court's order.

[11] Affirmed.

FOOTNOTES

2.   In light of this finding, we are unpersuaded by Father's reliance on Green v. Green, 843 N.E.2d 23 (Ind. Ct. App. 2006).

3.   Section 31-17-2-21 provides in relevant part,(a) The court may not modify a child custody order unless:(1) the modification is in the best interests of the child; and(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.The factors listed in Section 31-17-2-8 are not exhaustive.

Crone, Judge.

Riley, J., and Mathias, J., concur.