Kozenko v. Diaz (In re V.D.)

226 N.E.3d 816

IN RE: The PATERNITY OF V.D.;

Brittney Kozenko (Mother), Appellant-Petitioner,

v.Isaac Diaz (Father), Appellee-Respondent.

Court of Appeals Case No. 23A-JP-688

Court of Appeals of Indiana.

Filed January 11, 2024

Appeal from the Carroll Circuit Court, The Honorable Benjamin A. Diener, Judge, Trial Court Cause No. 08C01-2204-JP-4

Attorney for Appellant: Christina M. Phillips, Law Office of Christina M. Phillips, P.C., Delphi, Indiana

Attorney for Appellee: Timothy P. Broden, Lafayette, Indiana

Pyle, Judge.

Statement of the Case

[1] Brittney Kozenko ("Mother") appeals the trial court’s order that denied her request to relocate to Utah with her then twenty-three (23) month-old daughter V.D. ("Child") and awarded Isaac Diaz ("Father") primary physical custody of Child. Mother argues that: (1) there was insufficient evidence to support the trial court’s determination that relocation was not in Child’s best interests; and (2) the trial court clearly erred when it awarded Father primary physical custody of Child. Concluding that there is sufficient evidence to support the trial court’s determination that relocation was not in Child’s best interests, we affirm that portion of the trial court’s order. However, concluding that the trial court clearly erred when it awarded Father primary physical custody of Child, we reverse that portion of the trial court’s order and remand with instructions for the trial court to enter an order that reflects its reconsideration and clarification of the custody issue and includes a determination regarding what physical custody award is in Child’s best interests.

[2] We affirm in part, reverse in part, and remand with instructions.

Issues

1. Whether there is sufficient evidence to support the trial court’s determination that relocation was not in Child’s best interests.

2.Whether the trial court clearly erred when it awarded Father primary physical custody of Child.

Facts

[3] Mother, originally from northern California, graduated from Kansas State University in 2018. She moved to Carroll County, Indiana, for an employment opportunity with Indiana Packers Corporation as a food safety supervisor. That summer, Mother met and entered into a relationship with Father.

[4] Mother became pregnant by Father in 2020. After Child was born in April 2021,¹ Mother left her employment and stayed home with Child. Father worked outside the home. Mother and Father (col- lectively, "Parents") cohabitated and co-parented Child until March 2022, when Parents’ relationship soured. After the relationship had ended, Mother filed for and obtained a protective order against Father.

[5] In April 2022, Mother filed a verified petition to establish paternity, custody, child support, and visitation. In May, the trial court appointed a Guardian Ad Litem ("GAL"). In June, Parents entered into and filed with the trial court an agreed order that established Father’s parenting-time schedule with Child for the month of June.

[6] That same month, Mother accepted a position with Utah-based DFS Gourmet Specialties, Inc. ("DFS") that allowed her to work remotely from her home in Indiana. Mother worked approximately forty (40) hours per week and earned $22.70 per hour. DFS indicated that it would hold an in-house position for Mother at their offices in Salt Lake City, Utah, through the end of 2022. Father worked for Nanshan America, in Lafayette, as a supervisor. He worked a twelve-hour 2-2-3 schedule² and earned a salary of $68,000 per year.

[7] On June 29, 2022, Mother filed her notice of intent to relocate, indicating her desire to move with Child to Lehi, Utah. On July 5, 2022, Father filed his objection to Mother’s notice of intent to relocate. On July 21, 2022, Parents filed, and the trial court subsequently approved, a second agreed order that established Father’s parenting-time schedule with Child for July. In August 2022, Parents filed a third agreed order governing Father’s parenting-time schedule with Child for August.

[8] On August 22, 2022, the GAL filed her report with the trial court. The GAL recommended that Mother be allowed to relocate to Utah with Child "to be near her family, her support systems, and the job [at DFS] awaiting her." (App. Vol. 2 at 58), The GAL also recommended that Mother be awarded primary physical custody of Child, as Mother had been Child’s "primary caregiver since birth, and due to [Child’s] young age[,] it would be traumatic for her to be separated from Mother." (App. Vol. 2 at 58).

[9] In September 2022, Parents filed a fourth agreed order establishing Father's parenting-time schedule with Child for September and October. In early October 2022, Father changed employers. Subsequently, Father’s work schedule changed to weekends - specifically, Friday through Sunday from 5:00 a.m. to 5:00 p.m.

[10] In November 2022, Parents participated in a court-mandated mediation. On November 30, 2022, the mediator filed her report, indicating that Parents had reached an agreement regarding, among other things, Father’s parenting-time schedule with Child for December. The following day, the trial court approved Parents' mediation agreement.

[11] On December 5 and 12, 2022, the trial court held a hearing on all matters pending before it. At the December 12 hearing ("Final Healing"), Mother testified that she wanted to relocate to Utah to be near her family support system which included her mother, step-father, sister, nieces, and other extended family members. Mother further testified that upon relocation to Utah, she and Child would live with Mother’s parents, and Mother’s mother and sister would provide childcare for Child at no cost. Mother also testified that the relocation would provide Child with the opportunity to be with extended family, including cousins that are her age.

Father testified that he did not believe relocation was in Child’s best interests.

[12] As the Final Hearing progressed, the trial court periodically interrupted Parents’ respective counsel and questioned both Mother and Father as they testified. During Mother’s direct examination, the trial court questioned Mother and then made extensive remarks suggesting that if Mother believed that moving to Utah with Child was truly in Child’s best interests, Mother would have moved to Utah with Child and not remained in Indiana. The trial court further suggested that by staying in Indiana and choosing to file a paternity action and seek a protective order against Father in Indiana, Mother might have been acting in her own best interests and not that of Child. The trial court also suggested that Mother might have been attempting to gain the upper hand over Father and control his parenting time with Child.

[13] Specifically, the trial court engaged Mother in the following colloquy:

THE COURT: I know … it’s one of those things where — you realize you and [Father] weren’t manned, right?

[MOTHER]: Yes.

THE COURT: Because you said that you went to seek counsel about, like, legally ending the relationship or something. I forget your exact testimony, but it made it seem like you were consulting it. You said I had to talk to an attorney about ending the relationship.

[MOTHER]: I think I used the word "separation".

THE COURT: Right, That’s not a thing that exists though, you know that, right? Like people break up and they just move on. They’re not married. There’s not any legal connection between them.

[MOTHER]: I was just making sure to cover all my bases with [Father] living with me and then helping with the rent.

THE COURT: It’s tough for this neutral observer because[,] on the one hand, I want to give you kudos for following the law to the T and trying to do everything correctly. On the other, given what we’ve heard, it seems almost like you want to have the ability to be in control of the situation and all the terms, and that’s kind of your overriding goal.

(App. Vol. 2 at 78).

[14] The trial court further remarked:

[A]nd so the reason I’m struggling is, rather than just move to Utah in March, which was your full legal right to do, and then you’re getting everything you want. In your mind, you’re doing what’s best for the child because you’re doing what’s best for you. And then the burden is fully on Father to figure out if he wants to have a relationship with the kid or not, and then he either figures it out or doesn’t, right? …. But instead of choosing that outcome, which is what you’re asking for now, you’re asking for the Court to bless what you could have done before with all the same conditions and terms that you want[.] … But rather than just move to Utah yourself, we got the protective order …. "

(Tr. Vol. 2 at 80).

[15] The trial court also stated to Mother:

[I]t seems like you’re trying to stay connected to [Father], like you’re trying to get him to live how you want him to live, rather than just doing what’s best for the kid because if what’s best for the kid is moving to Utah, why didn’t you just move to Utah in March [2022] rather than file the protective order here?

*****So rather than move to Utah with your child because you’re afraid of Father and need protection from him, we stay in Indiana, [and] file for [a] protective order.

* * * * *

And then you pursue the legal options of doing this legal relationship with Father, which is—needs to happen, should have happened earlier, but didn’t, and so I guess my overarching question is was it—if it is in the child’s best interest for this to happen, why didn’t it just happen?

(Tr. Vol. 2 at 81).

[16] The Court went on to state the following:

It’s a complicated thing, and I'm not being fair with my questions, but it’s just - I'm not going to change Mother or Father and Mother and Father are going to have to find a way to co-parent …. I'm concerned about the foundation and the decision that the Court is going to have to make based on what appears to be at least not a fully thought-out plan because as a legal—just a legal question it makes no sense to submit yourself to a

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