A.A.W. v. A.D.P. (In re J.B.W.)

29 N.E.3d 822 (Table)

In re The Support of J.B.W. and M.A.W.

A.A.W., Appellant–Father

v.A.D.P., Appellee–Mother.

No. 89A01–1409–JP–403.

Court of Appeals of Indiana.

Feb. 27, 2015.

Amy K. Noe, Richmond, IN, Attorney for Appellant.

Andrew J. Sickmann, Boston Bever Klinge Cross & Chidester, Richmond, IN, Attorney for Appellee.

MEMORANDUM DECISION

MATHIAS, Judge.

[1] AA.W. (“Father”) appeals the Wayne Circuit Court's order granting A.D.P. (“Mother”) permission to relocate the parties' two minor children, J.B.W. and M.A.W., to New York. Father argues that the trial court clearly erred when it found that Father did not meet his burden of proving that the relocation was not in the best interests of the children.

[2] We affirm.

Facts and Procedural History

[3] This is the second appeal addressing Mother's notice of intent to relocate J.W. from Richmond, Indiana to Levittown, New York.¹ Relevant facts recited in the prior appeal are as follows:

J.W. was born to Mother on September 21, 2004. On June 10, 2005, the trial court entered an order establishing Father's paternity. The trial court awarded Mother custody of J.W., and Father was granted parenting time and ordered to pay child support. Mother, J.W., and Father all resided in Richmond, Indiana. In January 2007, Mother filed a notice of intent to relocate from Richmond to Florida. Father consented to the relocation and, following a hearing, the trial court entered an order granting Mother's request to relocate. Apparently, however, Mother decided not [to] move to Florida and remained in Indiana.

In 2008, Father was twice found in contempt of court for failure to pay child support. Thereafter, in September 2009, Mother filed a notice of intent to relocate to Indianapolis. Mother failed to properly serve Father with notice as required. Mother filed another notice of intent to relocate to Indianapolis in February 2010, but again failed to properly serve Father with notice as required. During this time, Father was twice found in contempt of court for failure to pay child support.

Despite her failure to properly serve Father with notice of her intent to relocate to Indianapolis, Mother did move with J.W. to Indianapolis in 2010 and attended the International Business College Dental Assistant Program. In response to her move, Father filed a petition for contempt against Mother. Mother was found in contempt and ordered to comply with the Indiana Parenting Time Guidelines as they pertained to transportation of J.W. for parenting time access purposes. Following a review hearing, the trial court determined that Mother had complied with the court's compliance order and dismissed the contempt citation. Soon thereafter, Father received his fifth and sixth contempt citations for failure to pay child support. In 2011, Mother returned to Richmond with J.W. after completing her degree.

On June 14, 2013, Mother filed a notice of intent to relocate to New York and properly served Father with such notice. In the notice, Mother stated that she had been offered gainful employment as a dental assistant in the New York area, that the wages for such employment far exceeded her current wages, that she has multiple family members in and near the community where she intends to move, and that she had verified the elementary school that J.W. would attend. Although Father did not file an objection to Mother's proposed relocation, the trial court set the matter for an evidentiary hearing. Mother appeared with counsel, and Father appeared pro se. After the hearing, the trial court entered its order denying Mother's petition to relocate. Specifically, the trial court concluded that Mother did not meet her burden to prove that her relocation request was made in good faith and for a legitimate purpose. The trial court did not make a determination regarding whether the proposed relocation was in J.W.'s best interest.

In re Paternity of J.W., 13 N.E.3d 551, Slip op. at 1–2 (Ind.Ct.App. May 20, 2014).

[4] On appeal, our court concluded that “the familial and financial reasons cited by Mother and supported by the evidence are more than sufficient to satisfy her burden to prove that her relocation request was made in good faith and for a legitimate reason, and the trial court's conclusion to the contrary is clearly erroneous.” Slip op. at 5. We observed that because Mother met her burden of proof under the relocation, the burden shifted to Father to prove that the proposed relocation was not in J.W.'s best interest. However, the trial court “heard very little evidence and made no conclusion regarding J.W.'s best interest”; therefore, we remanded the case to the trial court for further proceedings. Slip op. at 6.

[5] Thereafter, the trial court held a hearing on August 6, 2014. A week prior to the August 6 hearing, the trial court consolidated Mother's notice of intent to relocate J.W. with her notice of intent to relocate M.W.

[6] On September 9, 2014, the trial court issued an order granting Mother permission to relocate J.W. and M.W. to New York, and entered the following findings of fact:

18. Mother presented evidence that showed that a job offer remained valid in New York, which would allow her to work as a dental assistant.

19. Mother is currently employed by a restaurant in Richmond, Indiana, and earns far less than minimum-wage but does receive tip monies that vary on a weekly basis.

20. Even when considering Mother's wages from tips, Mother will often barely earn a living wage when considering her obligation to support her two children.

21. Mother has searched for jobs in the Wayne County, Indiana, area that would increase her standard of living; however, has been unsuccessful in obtaining such employment. Indeed, Mother testified that she has submitted multiple applications to dental offices in the Wayne County, Indiana area and that were such employment available, she would accept the same.

22. Mother testified that she lives at or below poverty level in Richmond, Indiana, and would very much like to change those circumstances for her children. As a result of the evidence presented at the Re–Hearing, this Court agrees with such an assessment when considering Mother's earning power in Richmond, Indiana, and the financial obligations she is tasked with in raising her two (2) children.

23. This Court would note that since the beginning of this Cause that Father has been held in contempt for failure to pay child support on at least six (6) separate occasions. It is significant that Father rarely satisfies his child support obligation on a consistent basis, which, in turn, creates an even greater financial burden for Mother in raising her two (2) children.

24. Mother testified that if she were permitted to move her two (2) children to New York that Father's access to the children would not be significantly altered. Mother indicated that Father's parenting time with the children is sparse and intermittent. In fact, Mother submitted text messages from Father that show his unwillingness to provide assistance in providing care, financial or otherwise, for the parties' minor children.

25. Father has repeatedly refused to assist Mother in watching the children when Mother is required to work, or to provide assistance in ascertaining a third (3rd) party to watch the children. Mother has shown this Court that Father often rejects his regularly scheduled access to the children and refuses to cooperate with Mother in finding suitable childcare in such instances. This requires Mother to repeatedly find childcare which she is nearly unable to afford when considering her present income.

26. Mother testified extensively to the fact that she has family in New York that is ready and willing to provide the assistance that she does not receive in Richmond, Indiana. Further, Mother has shown this Court that the increase in her wages that she would experience in New York would permit her to provide an all-around better life for her children and hopefully lift them from poverty.

27. Mother plans to live with her sister and brother-on-law in New York without being obligated to pay rent so that she may save money and eventually begin a solid financial life for her and her children. The evidence and testimony presented at the Re–Hearing show this Court that this goal is not presently possible for Mother should she remain in Richmond, Indiana.

28. Father and his Mother, the children's Grandmother, testified that each spends copious time with the children herein and that the children are bonded with Father. Father submits that it would not be in the best interest of the children to move to New York because Mother could increase her wages in the Wayne County, Indiana, area and that the children have family in Richmond, Indiana. This, however, must be tempered against the fact that Mother has attempted to gain better employment in the Wayne County, Indiana, area and that the children also have family in New York.

29. This Court has previously found that Father is bonded with the children and that his access with them is meaningful. The Court does not doubt that this remains true; however, Mother has since shown the Court that Father often chooses not to capitalize on these bonds and spend time with the children.

30. This Court acknowledges that Father's parenting time with the children will be effected should Mother move to New York; however, Father has failed to show this Court that his access to the children has been consistent over a significant period of time. Indeed, the evidence shows that Father often appears to argue with Mother for less time with the children.

31. The distance between Indiana and New York is substantial; however, Mother's proposal regarding Father's access to the children is reasonable, if not liberal. Father testified that should Mother be permitted to move the parties' children to New York that he would meet Mother half-way between Indiana and New York to exercise access with the children, which would require approximately

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