Furman v. Furman

171 N.E.3d 650 (Table)

Natasha M. FURMAN, Appellant-Petitioner,

v.Justin H. FURMAN, Appellee-Respondent.

Court of Appeals Case No. 20A-DC-1597

Court of Appeals of Indiana.

May 17, 2021

Attorneys for Appellant: Alexander N. Moseley, Bryan L. Ciyou, Ciyou and Dixon, P.C., Indianapolis, Indiana

Attorney for Appellee: Jill Doggett, Hart Bell LLC, Vincennes, Indiana

MEMORANDUM DECISION

Mathias, Judge.

[1] Natashia M. Furman¹ ("Mother") filed a notice of intent to relocate from Pike County, Indiana, to Satellite Beach, Florida, with three of her children. The children's father, Justin H. Furman ("Father"), objected and filed a motion to prevent relocation. The trial court denied Mother's proposed relocation following an evidentiary hearing. She now appeals, arguing that the court abused its discretion in denying her relocation request.

[2] We affirm.

Facts and Procedural History

[3] Mother and Father were married in Indiana in 2003 and have four children together: Con.F., who turned eighteen in December 2020; as well as Cr.F., born in 2011, E.F., born in 2008, and Co.F., born in 2007 ("Minor Children"). The Minor Children have lived in Pike County, Indiana their entire lives, and a majority of their relatives live in the area.

[4] In August 2017, Mother filed for divorce. A few months later, the court entered an order that dissolved Mother's and Father's marriage and approved the parties’ settlement agreement. Under that agreement, Mother and Father shared legal custody of their four children, Mother had primary physical custody, and Father would exercise parenting time. The agreement also stipulated that Mother had two years to acquire financing on the marital residence "for the sole purpose of releasing [Father]" from existing debt on the home. Appellant's App. p. 15. If Mother failed to meet the two-year deadline, she would sell the house.

[5] In August 2018, Mother married Andrew Aiman ("Husband"). About two months later, Husband had an altercation with Con.F., after which Con.F. went to live with Father. Father subsequently filed a motion requesting primary physical custody of Con.F. and shared physical custody of the Minor Children. See id. at 30–31. That motion remained pending—and Con.F. still lived with Father—when, in April 2020, Mother filed a notice of intent to relocate "within the next thirty (30) days" approximately fifteen hours away to Satellite Beach, Florida. Id. at 33. Mother indicated that she and Husband each had better job opportunities and that relocation would provide "her children with unique opportunities." Id. Father timely objected and requested a hearing.

[6] The trial court held an evidentiary hearing on July 24. Prior to the hearing, the court conducted in-camera interviews with two of the Minor Children—Cr.F. and Co.F. See id. at 5; Tr. Vol. II, pp. 4, 6.² During the hearing, several witnesses testified, including Mother, Husband, the children's paternal grandmother ("Grandmother"), Con.F., and Father.

[7] Mother's testimony revealed the following: she sold the marital home, pursuant to the dissolution agreement, and the sale was set to close in about a month; she and Husband signed a contract, on May 1, to purchase a home in Satellite Beach, Florida; she has worked in the cosmetology industry for nearly sixteen years and specializes in unique services; she has been working at a salon in Satellite Beach since the middle of May and returns to Indiana every four weeks to provide services for her local clients; and the Satellite Beach schools and surrounding area offer the Minor Children opportunities that are not available in Pike County. See Tr. Vol. II, pp. 30, 33–37, 74–75, 101. In addition, Mother did not contest Father's request to have primary physical and legal custody of Con.F. Id. at 77–78.

[8] Husband, who is an army veteran with a security clearance, indicated that he recently resigned his government position as an electronics engineer and has multiple job offers in the Satellite Beach area.³ Id. at 39, 140–43. He explained that the offer he planned to accept, if the relocation request was granted, would "be the next step in [his] career" as well as "the highest paying job [he's] ever had." Id. at 142. If the court denied the relocation request, however, Husband expressed "no doubt" that he could find a job locally. Id. at 166.

[9] Grandmother opined that Father is "a good parent," providing examples to support her belief; she also detailed her "special contact" with the Minor Children. Id. at 176, 179. Grandmother further explained that nearly all of the Minor Children's relatives live in the Pike County area, including Mother's parents and several aunts, uncles, and cousins. Id. at 178, 183–84; see also id. at 110–11. She testified that the family enjoys Sunday dinners together and that Cr.F. and E.F. "are basically best friends" with two of their cousins. Id. at 178; see also id. at 74. In Grandmother's view, relocation would not be in the Minor Children's best interests "because the family support is here in Indiana, not in Florida." Id. at 183. She also expressed concerns about the Minor Children being so far away from their oldest brother, Con.F. Id. He communicated a similar sentiment, id. at 192, and also detailed the close relationships he has with his siblings as well as the strong attachments they all have to the community, see id. at 192, 195–96, 224, 227.

[10] Father revealed that he "was shocked" when he received Mother's notice of intent to relocate. Id. at 240. He told the court that he does not want his Minor Children to move, stating, "their family's here .... I mean, there's nobody in Florida." Id. Father described the thought of going a long period of time without seeing the kids as "nerve-wracking." Tr. Vol. III, p. 7. And he acknowledged that the significant distance would create a financial hardship. Id. Father detailed activities he enjoys doing with the Minor Children, as well as his progress in strengthening a strained relationship with Co.F. Tr. Vol. II, p. 243; Vol. III, pp. 8–9. He also noted that E.F. specifically said "she didn't want to move to Florida." Tr. Vol. III, p. 25.

[11] At the conclusion of the hearing, the court denied Mother's request to relocate stating, "I don't believe that [the move] is legitimate," and, "I think the best interest of the [Minor Children] is that they remain in Indiana, and that [Mother, Husband, and Father] figure out how you're going to raise these children together." Id. at 34–35. The court subsequently issued an order to the same effect. Appellant's App. p. 9. Mother now appeals.

Standard of Review

[12] We review custody modifications for an abuse of discretion, with a "preference for granting latitude and deference to our trial judges in family law matters." Kirk v. Kirk , 770 N.E.2d 304, 307 (Ind. 2002). We will find an abuse of discretion if the court's judgment is clearly erroneous. Id. Where, as here, neither party requested—and the trial court did not issue—specific findings of fact and conclusions of law, we review the court's decision as a general judgment. Wolljung v. Sidell , 891 N.E.2d 1109, 1111 (Ind. Ct. App. 2008). On review, we will not reweigh the evidence or consider the credibility of witnesses, and we may affirm on any theory consistent with the evidence before the court. Lynn v. Freeman , 157 N.E.3d 17, 22 (Ind. Ct. App. 2020).

[13] Such deference is particularly important here as there is a heightened "concern for finality in custody matters." Baxendale v. Raich , 878 N.E.2d 1252, 1258 (Ind. 2008). And the trial court—by directly interacting with the parties—was in "a superior position ‘to assess credibility and character through both factual testimony and intuitive discernment.’ " Gold v. Weather , 14 N.E.3d 836, 841 (Ind. Ct. App. 2014) (quoting Best v. Best , 941 N.E.2d 499, 502 (Ind. 2011) ), trans. denied. For these reasons, we will not substitute the court's judgment with our own "if any evidence or legitimate inferences support the trial court's judgment." Best , 941 N.E.2d at 503.

Discussion and Decision

[14] Under certain circumstances, such as those here, a parent that intends to relocate must file a timely notice of that intent. Ind. Code §§ 31-17-2.2-1, -3. The nonrelocating parent can then respond in one of three ways. Id. § -5(a). Father proceeded under the third option, which requires the nonrelocating parent to file a statement objecting to the relocation, a motion requesting both an order preventing relocation and a modification of an existing court order, and a request for a hearing on the motion. Id. § -5(a)(3). At the hearing, the relocating parent bears the initial burden of showing that the "proposed relocation is made in good faith and for a legitimate reason." Id. § -5(e). If this showing is made, the burden shifts to the nonrelocating parent to establish "the proposed relocation is not in the best interest of the child." Id. § -5(f).

[15] The trial court here determined that (1) Mother failed to establish the proposed relocation "is being made for a legitimate and good faith purpose," and (2) in any event, relocation "is not in the best interests of the children." Appellant's App. p. 9; see also Tr. Vol. III, pp. 32–36. Mother ultimately challenges both conclusions, which we address in turn.

I. The trial court erred in concluding that Mother's proposed relocation was not made in good faith and for a legitimate reason.

[16] Mother first claims the trial court erroneously determined that she failed to prove that her relocation request was made in good faith and for a legitimate reason. Specifically, Mother argues that she "provided several objective [bases] for requesting a relocation," and that the court's decision contradicts "established precedential law." Appellant's Br. at 9, 12. We agree.

[17] Over the last several years, this court has issued a series of decisions discerning what the legislature intended by requiring a relocating parent prove that "the proposed relocation is...