Smith v. Ellermann

172 N.E.3d 687 (Table)

Amanda L. SMITH, Appellant-Petitioner,

v.Andrew ELLERMANN, Appellee-Respondent.

Court of Appeals Case No. 20A-JP-2060

Court of Appeals of Indiana.

FILED July 7, 2021

Attorneys for Appellant: M. Robert Phillips, Mark K. Phillips, Phillips Law Office, P.C., Boonville, Indiana

Attorney for Appellee: Erin Bauer, Barber & Bauer, LLP, Evansville, Indiana

MEMORANDUM DECISION

Bradford, Chief Judge.

Case Summary

[1] Andrew Ellermann ("Father") and Amanda Smith ("Mother") have one child together, C.E. Father, who lived in Princeton, located in Gibson County, notified Mother of his plans to move to Knox County, where C.E. attended daycare, he and his wife worked, and his family attended church. Mother lives and works in Evansville, located in Vanderburgh County, and, as one part of the physical custody arrangement, sees C.E. once a week after school for a midweek visitation. Father, who has physical custody and modified joint legal custody, has the authority to make final decisions concerning C.E. so long as he gets Mother's input. In February of 2020, Father and Mother discussed C.E.’s future enrollment in kindergarten. While Mother suggested that C.E. attend school in Gibson County or a parochial school which charges tuition, Father ultimately decided that C.E. would attend school in Knox County, where C.E. had also gone to daycare.

[2] Mother filed a petition to modify custody, parenting time, and child support on February 24, 2020, arguing that C.E. attending school in Knox county and Father's move would negatively affect Mother's finances and her ability to exercise her rights to co-parent C.E. Before the hearing on Mother's petition, Mother filed a report with the Department of Child Services ("DCS") alleging that C.E. told her and maternal grandmother that Father and paternal grandfather had given him beer when he was at Father's house. Following two hearings on the matter, on October 22, 2020, the trial court denied Mother's motion to modify custody, denied Mother's request for a midweek overnight, and increased Mother's child support obligation. Mother appeals, arguing that the trial court exhibited bias toward her; that it abused its discretion in considering certain evidence, determining that Father's move was in good faith, and denying Mother's petition for a change in custody; and that its fact-finding, conclusions, and calculation of child support were clearly erroneous. We affirm.

Facts and Procedural History

[3] Father and Mother have one child, C.E., born December 1, 2014. Father has had physical custody of C.E. since September of 2015 and modified joint legal custody since January of 2016. Pursuant to the parties’ modified joint legal custody arrangement, Father can make the final decisions regarding C.E., so long as he provides Mother with an opportunity for meaningful input on decisions.

[4] In 2015, the trial court ordered that, due to her criminal charges and conduct, Mother's parenting time would be supervised. Eventually, the trial court found that Mother's conduct had improved, and, in 2018, awarded Mother more parenting time in accordance with the Indiana Parenting Time Guidelines ("the Guidelines"), with her midweek parenting time taking place in Princeton so that C.E. could go to bed at a reasonable hour. In 2019, Mother moved from the north side to the south side of Evansville, farther from Princeton, where C.E. lived with Father, and Knox County, where C.E. was in daycare.

[5] C.E. began daycare in Vincennes in 2016 and attended that daycare until he began kindergarten in August of 2020, also in Knox County. In 2017, Father and Father's wife, Tara, purchased their house in Princeton to be closer to Evansville, where she worked. Father, who has worked in Knox County throughout these proceedings, commuted from Princeton to Knox County for work and to drop C.E. off at school. Father and Tara's two other children are also in daycare in Knox County. Mother lives and works in Evansville. C.E. also attends church with Father and Father's family in Knox County. C.E.’s paternal grandparents live approximately two miles from the church and attend services there. C.E. has played basketball at the Knox County YMCA since he was three years-old, with Father as the coach. Father is also active in Knox County volunteer work, serving as a Kiwanis board member and Junior Achievement of Southwest Indiana teacher and board member.

[6] When Tara began her position at Good Samaritan, located in Knox County, Father and Tara decided to build a house in Knox County because they both worked there, the children attended school there, and many other aspects of their lives occurred there. Father notified Mother by letter on March 17, 2020, of his intent to relocate before the construction of the house had begun but after the land had been purchased. In February of 2020, Father and Mother met to discuss schooling options for C.E. Father, who had researched options in Knox County and Gibson County, including Owensville Elementary, explained to Mother that it was logistically impractical for C.E. to attend school anywhere other than Knox County, mostly due to the one hour time difference between Knox County and other counties.¹ For instance, Father learned that Owensville Elementary in Gibson County, which is in the Central Time Zone, has a drop-off time as early as 7:30 a.m., making it impossible for him to drop off C.E. and get to work at 8:00 a.m. in Knox County, which is in the Eastern Time Zone. Mother suggested schools south of Knox County and schools which charge tuition, but Father felt that these options were prohibitively far away from his place of employment and that it would be impractical or overly expensive. After discussing the options with Mother, Father decided that C.E. would attend South Knox Elementary.

[7] On February 24, 2020, Mother filed a petition to modify custody, child support, and parenting time. On March, 18, 2020, Mother filed her objection to Father's informal notice of intent to relocate. On June 29, 2020, Mother filed a petition for an emergency hearing because the final hearing date was scheduled after C.E.’s school start date in Knox County. The hearing was set for July, but eventually rescheduled to August 13, 2020, due to Mother being under a doctor's care due to illness.

[8] Before the hearing, Mother filed a report with the DCS, alleging that Father had let C.E. drink beer and had permitted C.E. to ride in a vehicle unrestrained. Mother never attempted to discuss beer-drinking with Father prior to contacting DCS and had broached the subject of seat-belt wearing only once over a year before the DCS report was filed, though Father appeared to have ignored her attempts to discuss the matter when she tried. Because Mother did not notify the trial court, Father, or Father's counsel that she had contacted DCS, Father was not made aware of the DCS investigation until he was contacted by DCS a day after the first hearing. On September 16, 2020, during the second hearing, Mother revealed the existence of the DCS report to the trial court and the trial court agreed to hear Mother's evidence on the DCS report.

[9] At the second hearing, the trial court reevaluated the parties’ income to determine whether to alter child support. Father's long-time position is commission-based, and his 2019 income was comparable to his 2020 income. Father's child support worksheet used Father's gross weekly income of $1210.15 based on his 2019 W-2 income. Mother, who worked two jobs in 2019, had a yearly income of $45,670.00; however, she has recently received a promotion at one of her jobs, eliminating her need to work the second. Mother's child support worksheet showed her gross weekly income to be $1043.00. Mother also recently moved into a home with her fiancé, who pays their $1750.00 monthly rental payments, while Mother's expenses at home are limited to groceries and utilities.

[10] On October 22, 2020, the trial court issued its order. The trial court found that Father's intended relocation was not made in bad faith and that Father was acting within his final decision-making authority in choosing which school C.E. attends. Further, the trial court denied Mother's request for an additional midweek visitation day and increased Mother's weekly child-support obligation to $75.00 per week.

Discussion and Decision

[11] We will not set aside the findings or judgment of the trial court unless they are clearly erroneous. M.S. v. C.S. , 938 N.E.2d 278, 281–82 (Ind. Ct. App. 2010). "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Est. of Reasor v. Putnam Cnty. , 635 N.E.2d 153, 158 (Ind. 1994). "We [...] consider only the evidence that is favorable to the judgment and the reasonable inferences flowing therefrom." M.S. , 938 N.E.2d at 281–82.

[12] We will not reweigh evidence or reassess witness credibility. Id. "We will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment. The concern for finality in custody matters reinforces this doctrine." Baxendale v. Raich , 878 N.E.2d 1252, 1257–58 (Ind. 2008) (citing Kirk v. Kirk , 770 N.E.2d 304, 307 (Ind. 2002) ).

I. Father's Relocation

[13] With regard to a request to relocate, we will not disturb a court order unless it is apparent that there has been an abuse of discretion. Loeb v. Loeb , 252 Ind. 96, 100, 245 N.E.2d 831, 833 (1969). "The trial court has abused its discretion only if it makes an erroneous conclusion that is clearly against logic and the natural inferences to be drawn therefrom. Without some prejudice, reversible error does not exist." Ind. Tri-City Plaza Bowl, Inc. v. Gluek's Est. , 422 N.E.2d 670, 677 (Ind Ct. App. 1981). "[O]ur court has generally required that the moving parent demonstrate an objective basis—that is, ‘more than a mere pretext’—for relocating. It is commonly understood in today's society that...