Nelson v. Nelson

10 N.E.3d 1283

Traci NELSON, Appellant–Petitioner,

v.Tony NELSON, Appellee–Respondent.

No. 41A01–1309–DR–424.

Court of Appeals of Indiana.

June 26, 2014.

Donna Jameson, Greenwood, IN, Attorney for Appellant.

Robert D. Haas, Blankenship & Haas, Indianapolis, IN, Attorney for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Respondent, Traci Nelson (Mother), appeals the trial court's Order denying her motion for relocation and modifying custody of her minor child, T.N. (the Child), in favor of Appellee–Petitioner, Anthony Nelson (Father).

We affirm.

ISSUE

Mother raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred by denying Mother's motion for relocation to South Carolina.

FACTS AND PROCEDURAL HISTORY

On February 28, 2005, Mother and Father were married and established their home in Indiana. On July 19, 2005, the couple welcomed the Child. After only two years of marriage, the couple separated in January 2007, and Father subsequently filed a petition to dissolve marriage. On August 9, 2007, the trial court entered a Decree of Dissolution and adopted the Settlement Agreement reached by the parties. The Decree granted both parties joint legal custody of the Child, with Mother having primary physical custody. In addition, Father was awarded parenting time on alternate weekends, from Friday 6:00 PM through Sunday 6:00 PM, and one overnight during the week.

On November 12, 2010, Mother filed a notice of intent to move to South Carolina, citing she could not obtain employment in her field of work in Indiana. Prior to filing her notice, Mother sold medical equipment for Home Health Depot, Inc., but her employment terminated on October 11, 2010. Mother's employment contract contained a non-compete clause; therefore, she could not work in a comparable field in Indiana for a period of at least one year.

On February 7, 2011, Father filed an objection to the proposed relocation. On April 19, 2011, Mother filed an amended notice of intent to move citing that she had received an offer from Tuomey Healthcare Systems (Tuomey), located in South Carolina, to work as a physical therapist, on the condition that she passed the National Physical Therapist Assistant Exam. Mother also stated that she intended to move to South Carolina on May 27, 2011. On May 10, 2011, Father filed a verified response and objection to Mother's amended notice of intent to move, a motion to modify custody and address parenting time, and a motion for a hearing. Prior to the trial court's approval, Mother relocated to South Carolina. Mother, however, failed the National Physical Therapist Assistant Exam, therefore, she lost the employment opportunity with Tuomey. In need of a job, Mother accepted a medical sales job with Ronco Specialized Systems Inc. in Columbus, South Carolina.

On July 29, 2011, the trial court held an emergency hearing to determine temporary custody of the Child pending a full evidentiary hearing. On August 9, 2011, the trial court issued an Order granting Father temporary custody of the Child and ordered Mother to bring the Child back to Indianapolis. Mother complied and returned the Child to Indiana. On March 5, 2013, and on June 25, 2013, the trial court held an evidentiary hearing on Mother's motion to relocate, and Father's objection thereof and Father's motion to modify custody. On August 3, 2013, the trial court issued its Order concluding:

(1) Mother has not met the burden of proof required of her [with] regard to her relocation request, and the [court] finds the same is not [in] good faith ...; (2) Father has met the burden of proof required of him in regard to his objection to the move [and] that the relocation is not in the best interest of the minor child; (3) Considering the statutory factors relevant to custody, the [court] finds both parties should share joint legal custody of the minor child and [that] Father should be granted sole physical custody with Mother having parenting time; and (4) Child support should be modified herein accordingly.

(Appellant's App. pp. 19–20).

Mother now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Here, the parties did not request for specific findings of facts and conclusions pursuant to Indiana Trial Rule 52(A). However, the trial court sua sponte made findings on whether Mother's relocation request was made in good faith and for a legitimate purpose and whether the proposed relocation would be in the Child's best interest. As such, we employ a two tiered standard of review:

[W]e must first determine whether the record supports the factual findings, and then whether the findings support the judgment. On appeal, we will not set aside the findings or judgment unless they are clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. We therefore consider only the evidence favorable to the judgment and the reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility. A judgment is clearly erroneous when there is no evidence to support the findings, the findings do not support the judgment, or the trial court applies the wrong legal standard to properly found facts.

T.L. v. J.L., 950 N.E.2d 779, 783 (Ind.Ct.App.2011) (quoting M.S. v.C.S., 938 N.E.2d 278, 281–82 (Ind.Ct.App.2010)).

In addition, our supreme court has articulated an unequivocal policy of “granting latitude and deference to our trial judges in family law matters.” Swadner v. Swadner, 897 N.E.2d 966, 971 (Ind.Ct.App.2008) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind.1993)). “[A]ppellate 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.’ ” D.C. v. J.A.C., 977 N.E.2d 951, 956–57 (Ind.2012) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)). It is well established that there should be finality in matters concerning the custody of a child. Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind.2008). Accordingly, on review, “we ‘will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment.’ ” T.L. v. J.L., 950 N.E.2d 779, 784 (Ind.Ct.App.2011) (quoting Baxendale, 878 N.E.2d at 1257–58), reh'g denied.

II. Relocation

Pursuant to Indiana Code section 31–17–2.2–1(a), “[a] relocating individual must file a notice of the intent to move with the clerk of the court that: (1) issued the custody order or parenting time order; or (2) ... has jurisdiction over the legal proceedings concerning the custody of or parenting time with a child; and send a copy of the notice to any nonrelocating individual.”

A nonrelocating parent may object to relocation in either of two ways: by filing a motion to modify the custody order or by filing, within sixty days of receipt of the notice, a motion to prevent relocation of the child. Upon request of either party, the trial court shall hold a full evidentiary hearing to grant or deny a motion to prevent relocation of the child. “The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason.” If the relocating parent meets that burden, “the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.”

T.L., 950 N.E.2d at 784. (internal references omitted).

A. Good Faith and Legitimate Reason

The Relocation Statute “requires that a legitimate reason be objectively shown [ ] and [,] by requiring that the relocation be in good faith, demands that the objective reason be more than a mere pretext.” T.L., 950 N.E.2d at 787. In general, our court has found that employment opportunities, financial considerations, and proximity to family are legitimate reasons to justify a relocation. See id. at 787–88.

Mother argues that her desire to move to South Carolina was in good faith. Mother's initial notice of her intent to relocate stated that she was unable to obtain employment in a similar field in Indiana; thus, she anticipated she would move to South Carolina if she established employment. The amended notice of intent to relocate stated that she had received a job offer from Tuomey to work as a physical therapist. Father however counters Mother's grounds for relocation by stating that because Mother was not barred from working in Indiana as a physical therapist, she should have sought employment here, as there were many job openings in that field.

The trial court issued a single finding that the relocation was not made in good faith. Finding 1 stated:

1. The [c]ourt finds Mother has not met her burden of proof in that she has not shown good faith or legitimate reason in relocating to South Carolina pursuant to Ind.Code 31–17–2.2–5(c). While the [c]ourt recognizes the importanceof family ties and family relationships, the [c]ourt finds that there was not a good faith and legitimate reason for Mother to relocate to South Carolina other than her desire to do so without sufficient concern for the effect of the move on the child's wellbeing. However, even if the [c]ourt were to have found good faith, the [c]ourt finds that Father has met his burden of proof that Mother's relocation is not in the best interest of the Child.

(Appellant's App. p. 20). Based on the above, we conclude that the trial court's finding and the record itself, fails to support the trial court conclusion that the intended move was not in good faith. Rather, notwithstanding the fact that Mother moved to South Carolina prior the trial court's approval, we find that her reasons for relocation were legitimate and were in good faith.

The record reveals that Mother...