Wolljung v. Sidell

891 N.E.2d 1109

Cemantha Sidell WOLLJUNG, Appellant, v. Joseph SIDELL, Appellee.

No. 15A04-0712-CV-712.

Court of Appeals of Indiana.

August 13, 2008.

Ronnie L. Miller, Indianapolis, IN, Attorney for Appellant.

George A. Leininger, Collins, Hensley & Wynn, Madison, IN, Attorney for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Cemantha Sidell Wolljung ("Mother") appeals from the trial court's order granting a motion filed by Joseph Sidell ("Father") to modify custody of the parties' minor child, S.S. Mother presents a single issue for review, namely, whether the trial court abused its discretion when it granted Father's motion based on Mother's intent to relocate with the child.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY¹

Father and Mother were married in 1995 and divorced by summary decree on October 4, 2001. The parties have one child, S.S., who was born on September 21, 1996. In the summary decree, the court approved and incorporated the parties' written agreement regarding the custody and support of their minor child, S.S. Specifically, the parties had agreed to joint legal custody, with Mother to have primary physical custody and scheduled parenting time for Father. However, the parties subsequently agreed to and followed a schedule that provided equal parenting time for each party.

In the summer of 2006, Mother informed Father that she had become engaged to marry Kirk Wolljung ("Stepfather"), whose job was being transferred to Arkansas. Mother also informed Father of her intent to relocate with S.S. to Arkansas with Stepfather. Mother then filed with the court a notice of intent to relocate. Opposing the removal of S.S. to Arkansas, Father filed a motion to modify custody and a motion for a custodial evaluation. Mother subsequently filed a "Motion for Contempt" regarding Father's alleged failure to pay childcare expenses for S.S.² Appellant's App. at 37.

The court granted Father's request for a custodial evaluation, which was later performed by Connor and Associates PLLC ("Connor Custodial Evaluation"). Mother then sought an independent evaluation from Dr. Gayle Kaibel, Ph.D.³ On May 29, 2007, the court held a hearing on Father's motion to modify custody and Mother's motion for contempt. The court later held an in camera interview of the child, who was ten years old at the time. On September 12, 2007, the court issued its order granting Father's motion to modify custody. The order also set out a new visitation schedule to become effective upon Mother's relocation to Arkansas. Mother now appeals.

DISCUSSION AND DECISION

Mother contends that the trial court abused its discretion when it granted Father's motion to modify custody. 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." Apter v. Ross, 781 N.E.2d 744, 757 (Ind.Ct.App. 2003) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)), trans. denied. We will not reweigh the evidence or judge the credibility of the witnesses. Leisure v. Wheeler, 828 N.E.2d 409, 414 (Ind.Ct.App. 2005). Rather, we consider only the evidence most favorable to the judgment and any reasonable inferences from that evidence. Id.

In Spoor v. Spoor, 641 N.E.2d 1282, 1284-85 (Ind.Ct.App.1994), this court further detailed our standard of review:

Upon an initial custody determination, the trial court presumes that both parents are equally entitled to custody. However, in a petition to modify custody, the petitioner must demonstrate the existence of changed circumstances so substantial and continuing as to make the existing custody order unreasonable. The standard is in place to avoid the disruptive effect of moving children back and forth between divorced parents and to dissuade former spouses from using custody proceedings as vehicles for revenge. Accordingly, it has long been recognized that the welfare of the children is paramount and is promoted by affording them permanent residence rather than the insecurity and instability that follow changes in custody. This is so even though at any given point in time the noncustodial parent may appear capable of offering "better" surroundings, either emotional or physical.

The standard, however, does not require a trial court to find that the present custodial parent is unfit prior to granting a change. The changes asserted in the petition are to be judged in the context of the whole environment. A trial court's inquiry in proceedings to modify a custody decree is strictly limited to consideration of changes in circumstances which have occurred since the last custody decree.

(Citations omitted, emphases added).

Where, as here, the trial court did not make special findings, we review the trial court's decision as a general judgment and, without reweighing the evidence or considering witness credibility, affirm if sustainable upon any theory consistent with the evidence. See Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind.2008). Judgments in custody matters generally turn on essential factual determinations and will be set aside only when they are clearly erroneous. Id. We will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment. Id. at 1257-58.

The relocation of a custodial parent does not require modification of a custody order. Id. at 1256. But, when the nonrelocating parent seeks custody in response to a notice of intent to relocate with the child,

[t]he court shall take into account the following in determining whether to modify a custody order [or] parenting time order ...:

(1) The distance involved in the proposed change of residence.

(2) The hardship and expense involved for the nonrelocating individual to exercise parenting time....

(3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time ..., including consideration of the financial circumstances of the parties.

(4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual's contact with the child.

(5) The reasons provided by the:

(A) relocating individual for seeking relocation; and

(B) nonrelocating parent for opposing the relocation of the child.

(6) Other factors affecting the best interest of the child.

Ind.Code § 31-17-2.2-1(b) (2008) (emphasis added). "The court may consider a proposed relocation of a child as a factor in determining whether to modify a custody order [or] parenting time order...." Ind. Code § 31-17-2.2-2(b).

Mother contends that the trial court, in ordering a change of custody arising from her intended relocation, "disregard[ed] provisions of Indiana's relocation statute and fail[ed] to consider evidence provided at [the] hearing prior to shifting custody of [S.S.]" Appellant's Brief at 8. In essence, Mother argues that the trial court (1) did not consider all of the elements required under Indiana Code Section 31-17-2.2-1(b) and (2) ignored certain evidence. We find the first issue to be dispositive.⁴

Mother contends that the trial court "committed reversible error by disregarding provisions of Indiana's relocation statute. ..." Appellant's Brief at 8. We must agree. Because Father's motion to modify custody was filed in response to Mother's notice of intent to relocate, the trial court was required to consider the factors listed in Indiana Code Section 31-17-2.2-1(b) when deciding whether to modify custody. See Ind.Code Section 31-17-2.2-1(b) ("Upon motion of a party, the court shall set the matter for hearing to review and modify, if appropriate, a custody order.... The court shall take into account the following in determining whether to modify a custody order...."). However, the record does not show that the trial court was presented with evidence on each of the factors listed in Section 31-17-2.2-1(b).

Our review of the record shows that Mother's proposed move was 730 miles away and that Father had told S.S. that the visitations would not be as frequent because of the distance. The parties offered evidence regarding their respective incomes, actual or imputed,⁵ and regarding Mother's and Father's agreement since the divorce that S.S. should have as much time with Father as with Mother. Mother testified that she planned to move to join her new husband in Arkansas, where he was required to relocate for work. And the parties testified concerning their respective plans regarding S.S.'s schooling, activities, medical care, child care, and related issues in the event the court awarded custody to him or her. But the parties do not direct us to any evidence in the record regarding the expense involved for Father to exercise parenting time, and there is only indirect evidence, if any, regarding the hardship for Father to exercise visitation if S.S. were to relocate with Mother.⁶ Moreover, although the Connor Custody Evaluation addresses the effect on S.S. of relocating to Arkansas, the parties do not point to any evidence in the record regarding the feasibility of preserving the relationship between Father and S.S. in the event of relocation.

In relocation cases, there is an interplay between the custodial modification statute, Indiana Code...