Ro.C v. Ry.C

Ro.C., Appellant-Petitioner,

v.Ry.C., Appellee-Respondent.

No. 32A01-1009-DR-435

COURT OF APPEALS OF INDIANA

FILED: March 30, 2011

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

BETTY M. HARRINGTON

Harrington Law, P.C.

Danville, Indiana

ATTORNEY FOR APPELLEE:

DANIEL F. ZIELINSKI

Steuerwald Hannon Zielinski & Witham

Danville, Indiana

APPEAL FROM THE HENDRICKS CIRCUIT COURT

The Honorable Jeffrey V. Boles, Judge

Cause No. 32C01-0710-DR-115

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE

Ro.C. ("Mother") filed a post-dissolution notice of intent to relocate to New York with her children. Ry.C. ("Father") filed his objection to Mother's notice of intent to relocate and a motion to modify custody. Mother then filed a motion to modify child support. Following an evidentiary hearing, the dissolution court denied Mother's request to relocate. Mother presents the following restated issues on appeal:

1. Whether the trial court clearly erred when it denied her request to relocate with the children to New York.

2. Whether the trial court abused its discretion when it impliedly denied her motion to modify child support.

We affirm in part and dismiss in part.

FACTS AND PROCEDURAL HISTORY

Four children were born to Mother and Father during their marriage: K.C.1, born March 27, 1996; K.C.2, born January 5, 2001; Kr.C., born August 9, 2002; and A.C., born March 15, 2004 (collectively "the children"). On June 19, 2008, the parties entered into an Agreement of Property Settlement and for Child Custody and Support ("Agreement"). Under the Agreement, the parties were awarded joint legal custody of the children. The Agreement also awarded Mother primary physical custody and gave Father "reasonable parenting time with the minor children as the parties agree, but not less than that provided in the Indiana Parenting Time Guidelines." Appellant's App. at 23. And the Agreement provides, in relevant part:

6. Parenting Time Journal: The parties understand that the Court requires each party to make complete, contemporaneous notes of all parenting time exchanges and/or issues, and to exchange these notes with the other parent prior to initiating any request for a court-ordered modification of parenting time (as opposed to the submission of a written agreement for Court approval). The parties understand that this requirement is JURISDICTIONAL to any request for court intervention regarding parenting time and custody issues.

Appellant's App. at 26 (emphasis in original). Also on June 19, the dissolution court approved the Agreement and entered a decree dissolving the marriage ("Decree").¹

At all relevant times, Father has been employed at Eli Lilly in Indianapolis, and Mother has been unemployed. At the time of the dissolution, Mother was completing coursework to become a medical transcriptionist. Under the Agreement, the parties agreed that Father's bonus income would not be considered in determining child support because that income "is not regular and substantial enough to be considered as income for child support purposes." Id. Further, the parties "agree[d] that [Father's] income is greatly reduced by the fact that [he] is assuming all of the marital debt, and they [took] that into consideration in determining never to use [his] contingent compensation as income for child support purposes." Id. As a result, the child support worksheet applied only Father's non-contingent income and imputed to Mother income for a medical transcriptionist at $215 per week. Based on those salary figures, Father was ordered to pay $405 weekly child support under the Indiana Child Support Guidelines ("Guidelines").

On May 28, 2010, Mother filed a pro se Notice of Intent to Move, requesting permission to relocate with the children to Stockton, New York. In that motion, Mother stated that the move was necessary so that she could go to nursing school in New York, where she had been accepted into a program, and accept an offer of part-time employment in a company where her mother was vice president. On June 22, Father filed his objection to Mother's request for permission to relocate, a motion to modify physical custody, and a motion for an order prohibiting Mother from relocating until after a hearing on the matter. On that same date, the dissolution court entered an ex parte order prohibiting Mother from relocating pending a hearing. And on July 6, Mother filed a motion to modify child support.

On July 20, the court held an evidentiary hearing on Mother's notice of intent to relocate, Father's objection to relocation, and Mother's motion to modify child support. And on August 10, the court entered its order with findings and conclusions thereon ("Order"), pursuant to Mother's written request. The court denied Mother's request to relocate with the children to New York, stating, in relevant part:

2. At the trial in this case, [Mother] failed to comply with the Agreement of Property Settlement and for Child Custody and Support ordered 19 June, 2008, requiring complete contemporaneously[ ]made written records. [Father] did comply with [that order].

3. The evidence of the trial presented [sic] proved [Mother] has been unemployed since the date of dissolution and up until her filing of [the] Petition to Relocate to Western New York to work in a company where her [m]other is the Vice-President and that [Mother] never obtained employment and is living on the current child support that [Father] pays. [Mother] seeks to move to Stockton, New York, and claims to have been accepted at Jamestown [Community College] to study nursing. She has testified that she is eligible for a Pell Grant and Obama Grant and can receive nursing school free books and tuition in the fall. [Mother] claims she will work for $12 per hour on a part-time basis in Stockton, New York.

4. Stockton, New York, is an approximately 8[-]hour drive from Plainfield, Indiana.

5. Both [Mother] and [Father] came to Indiana from the New York area.

6. [Mother] and [Father] have lived in the Plainfield area since 2003. Their children attend schools [in] Plainfield and church at St. Thomas Moore.

7. [Father] has [overnight] parenting time approximately 110 days per year and [] total parenting time of 200 time[s] per year.

8. [Mother] has a boyfriend in Findley, Ohio.

9. It goes without saying that any attempt to move is a matter that directly affects parenting time.

10. The evidence at trial proved that her proposal to move is not in good faith or for [a] legitimate purpose because she desires to move near her family to do some [sic] education.

11. At trial [Father] showed that it was not in the best interest for the children to move, which would be a complete alienation from their father who visits regularly and pays current support. Removal from Plainfield, friends, church and school activities is not in the children's best interest[s].

LAW

A relocating parent has the burden to show the Court that relocation is planned in good faith and for [a] legitimate purpose. The non-relocating parent must show that the relocation is not in the children's best interest[s]. I.C. [§] 31-17-2.2-5.

ORDER

Because [Mother] failed to prove by a preponderance of the evidence in this case that her relocation is in good faith and for a legitimate purpose and the fact that [Mother] failed to comply with the order of 19 June, 2008, by keeping complete contemporaneously made written notes and exchanging notes before any proceedings were had in Court, the Court specifically DENIES [Mother's] Notice of Intent to Move, her failure to comply with the order having no explanation or excuse.

Appellant's App. at 7-8. Mother now appeals.

DISCUSSION AND DECISION

Standard of Review

We initially observe that the trial court entered findings and conclusions thereon at Mother's request. Our standard of review of special findings pursuant to Indiana Trial Rule 52(A) mandates that we first determine whether the evidence supports the findings and then whether the findings support the judgment. Borth v. Borth, 806 N.E.2d 866, 869 (Ind. Ct. App. 2004). Because the trial court is charged with determining the credibility of the witnesses, the findings or judgment will not be set aside unless clearly erroneous. Id. Clear error exists where the record does not offer facts or inferences to support the trial court's findings or conclusions thereon. See id. We will not reweigh the evidence or assess the credibility of witnesses. Pramco III, LLC v. Yoder, 874 N.E.2d 1006, 1010 (Ind. Ct. App. 2007).

Where, as here, a trial court has made special findings pursuant to a party's request under Indiana Trial Rule 52(A), the reviewing court may affirm the judgment on any legal theory supported by the findings. See Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind. 1998). Before affirming on a legal theory supported by the findings but not espoused by the trial court, the reviewing court should be confident that its affirmance is consistent with all of the trial court's findings of fact and inferences drawn from the findings. Id.

We also observe that our supreme court has expressed a " 'preference for granting latitude and deference to our trial judges in family law matters.' " Garnet E.S. v. Wess A. J. (In re J.J.), 911 N.E.2d 725, 728 (Ind. Ct. App. 2009) (citing In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). The rationale for this deference is that appellate courts " 'are in a poor position to look at a cold transcript of the record, and conclude that the trial judge . . . did not properly understand the significance of the evidence, or that he should have found its preponderance or the inferences therefrom to be different from what he did.' " Id. (citing Kirk v. Kirk, 770 N.E.2d...