Court of Appeals of Indiana | Memorandum Decision 70A01-1407-DR-313 | March 25, 2015 Page 1 of 8 

### MEMORANDUM DECISION
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.

A TTORNEY FOR A PPELLANT Jerry J. Lux Brown, DePrez & Johnson, P.A. Shelbyville, Indiana A TTORNEY FOR A PPELLEE William B. Keaton Keaton and Keaton Rushville, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

W.W., A

ppellan t -Defendant,

v. 

### B.W., A

ppelle e -Plaintiff March 25, 2015 Court of Appeals Case No. 70A01-1407-DR-313 Appeal from the Rush Superior Court Honorable Brian D. Hill, Judge Cause No. 70D01-1201-DR-029



### Friedlander, Judge.

[1] W.W. (Mother) appeals from the trial court’ s denial of her petition to relocate. She raises the following co nsolidated, restated issue on appeal: Did the trial court clearly err in finding that allowing Mother to relocate with C.W. (Child) was not in Child’s best interests?Court of Appeals of Indiana | Memorandum Decision 70A01-1407-DR-313 | March 25, 2015 Page 2 of 8 [2] We affirm.

[3] Mother and B.W. (Father) were married in 2010, and Child was born in 2011. The marriage was dissolved in June 20 13, and Mother was awarded custody with Father exercising liberal parenting time.

[4] On March 18, 2014, Mother filed a noti ce of her intent to relocate from Shelbyville, Indiana to Utica, Kentucky with Child. In the notice, Mother asserted that she wanted to move because she was “becoming engaged and wishe[d] to join her fian cé in this location.” Appellant’s Appendix at 28. Father filed a motion for a temporary restra ining order to prevent mother from relocating with Child and an objection to Mother’s notice of intent to relocate. A hearing was held on April 30, 2014, at which Mother agreed that she would not relocate with Child until the contes ted matter was resolved. On the same date, the trial court issued an order gr anting Father’s requ est for a temporary restraining order and setting the matter of Father’s objection to Mother’s notice of intent to relocate for a hearing.

[5] A hearing on Father’s object ion to Mother’s notice of intent to relocate was held on June 30, 2014. On the same date, the trial court issued an order denying Mother’s request to relocate with Child. Mother now appeals. Additional facts will be provided as necessary.

[6] Where, as here, the trial co urt enters special findings of fact and conclusions thereon pursuant to Trial Rule 52(A), we apply a two-tiered standard of review. In re Paternity of C.S. , 964 N.E.2d 879 (Ind. Ct. App. 2012), trans. denied . First,Court of Appeals of Indiana | Memorandum Decision 70A01-1407-DR-313 | March 25, 2015 Page 3 of 8 we consider whether the evidence suppo rts the finding s, and second, whether the findings support the judgment. Id. The trial court’s findings and conclusions will be set aside only if th ey are clearly errone ous—that is, where a review of the record leaves us with a firm conviction that a mistake has been made. In re Paternity of D.T. , 6 N.E.3d 471 (Ind. Ct. App. 2014). In conducting our review, we will neither reweigh the evidence nor judge the credibility of witnesses. Id. Instead, we will cons ider only the ev idence favorable to the trial court’s judgment. Id.

[7] Mother challenges the trial court’s denial of her request to relocate with Child. When a parent files a notice of intent to relocate, the nonrelocating parent may object by moving to modify custody or to prevent the child’s relocation. Ind. Code Ann. § 31-17-2.2-1 (West, Westlaw current with all legislation of the 2015 First Regular Session of the 119th Genera l Assembly effective through February 23, 2015); I.C. § 31-17-2.2-5 (West, West law current with all legislation of the 2015 First Regular Session of the 119th General Assembly effective through February 23, 2015). Where, as here, the nonrelocating parent files a motion to prevent relocation, the relocating parent must first prove “that the proposed relocation is made in good faith and for a legitimate reason.” I.C. § 31-17-2.2- 5(c). If the relocating parent makes such a showing, “the bu rden shifts to the nonrelocating parent to show that the pr oposed relocation is not in the best interest of the child.” I.C. § 31-17-2.2-5(d).

[8] In this case, the trial co urt found that Mother had satisfied her burden of proving that her proposed relocation was made in good faith and for aCourt of Appeals of Indiana | Memorandum Decision 70A01-1407-DR-313 | March 25, 2015 Page 4 of 8 legitimate purpose. 1 The trial court went on, howe ver, to find that Father had satisfied his burden of establishing th at the proposed relo cation was not in Child’s best interests. It is the la tter finding Mother contests on appeal.

[9] In considering a proposed relocation, a trial court must weigh the following factors:
(1) The distance involved in the proposed change of residence. (2) The hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation. (3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements, 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 indi vidual’s contact with the child. (5) The reasons provided by the: (A) relocating individual for seeking relocation; and (B) nonrelocating parent for oppo sing the relocation of the child. (6) Other factors affecting the best interest of the child. I.C. § 31-17-2.2-1(b); see also D.C. v. J.A.C. , 977 N.E.2d 951 (Ind. 2012). 2 “The ‘[o]ther factors affecting the best interest of the child’ include, by implication,

1 Father argues that the trial court’ s finding in this regard was not supported by the evidence. Because we affirm the trial court’s ulti mate decision to deny Moth er’s request to relocate, we need not address this argument.
2 Mother’s reliance on D.C. v. J.A.C. , 966 N.E.2d 158 (Ind. Ct. App. 2012), trans. granted, opinion vacated in relevant part , D.C. v. J.A.C. , 977 N.E.2d 951 (Ind. 2012), is misplaced. Our Supreme Court granted transfer in that case, thereby vacating the relevant portion of this court’s opinion. See Ind. Appellate Rule 58(A) (providing that where the Supreme Court grants transfer, the decision of the Court of Appeals isCourt of Appeals of Indiana | Memorandum Decision 70A01-1407-DR-313 | March 25, 2015 Page 5 of 8

the factors set forth for custody dete rminations and modifications under Indiana Code section 31-17-2-8.” T.L. v. J.L. , 950 N.E.2d 779, 785 (Ind. Ct. App. 2011) (alteration in original). I. C. § 31-17- 2 -8 provid es that the

court “shall consider all relevant factors,” including specifically the following: (1) The age and sex of the child. (2) The wishes of the c hild’s parent or parents. (3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child’s parent or parents; (B) the child’s sibling; and (C) any other person who may significantly affect the child’s best interests. (5) The child’s adjustment to the child’s: (A) home; (B) school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. [10] In finding that relocation was not in Child’s best inte rests, the trial court found that Father exercises extensive pare nting time with Child, which would

automatically vacated except for portions expressly adopted, incorporated by reference, or summarily affirmed by the Supreme Court).Court of Appeals of Indiana | Memorandum Decision 70A01-1407-DR-313 | March 25, 2015 Page 6 of 8 necessarily be significantly reduced by Mo ther’s relocation with Child to an area approximately 230 miles away. The trial court also found that Child has close and loving relationships with both sides of her extended family, and her contact with these individuals would also be significantly reduced. Based on these findings, the trial co urt found that relocation was not in Child’s best interests.

[11] Mother’s arguments on appeal are merely requests to reweigh the evidence and reach a conclusion opposite that of th e trial court. As our Supreme Court explained in D.C. v. J.A.C. , Appellate deference to the determinations of our trial court judges, especially in domestic relations ma tters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to access credibility and character through both factual test imony and intuitive discernment, our trial judges are in a superior po sition to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children. 977 N.E.2d at 956. It is not enough on appeal that the evidence might support some other conclusion; rather, the eviden ce must positively require the result sought by the appellant. D.C. v. J.A.C. , 977 N.E.2d 951. Accordingly, an appellate court “will not substitute [i ts] own judgment if any evidence or legitimate inferences support the trial court’s judgment.” Id. at 957 (quoting Baxendale v. Raich , 878 N.E.2d 1252, 1257-58 (Ind. 2008) (alteration in original).

[12] In this case, evidence was presented th at Father regularly exercises extensive parenting time with Child. Specifically , he exercises parenting time three daysCourt of Appeals of Indiana | Memorandum Decision 70A01-1407-DR-313 | March 25, 2015 Page 7 of 8 per week, including one overnight every ot her weekend. Mother proposed that if she moved to Utica, which is three- and-a-half to four hours away by car, Father could have parenting time every other weekend and part of the summer. This would constitute a significant decrease in Father’s parenting time, particularly in light of Fa ther’s work schedule as a firefighter, which requires him to work one twenty-four-hour period every weekend. Thus, Father would be available to spend time with Child on ly one day every other weekend, or two days per month. Accordingly, the trial court’s finding that Father’s parenting time would be significantly reduced as a re sult of the proposed relocation is not clearly erroneous. Moreover, testimon y was presented that Child spends a significant amount of time with her extended family, including her grandparents, aunts and uncles, and cousin s, all of whom live in her current community. Indeed, Child’s paternal grandparents test ified that they see her two or three times per week. Child ha s no extended family in the Utica, Kentucky area. Accordingly, the tria l court’s finding th at the proposed relocation would significantly reduce the time spent with her extended family is likewise supported by the evidence.

[13] We acknowledge and do not dispute Mother ’s assertions that the relocation could also be beneficial to Child in ce rtain ways. But Mother’s arguments are, at bottom, simply a request to substitute our judgment for that of the trial court. As we explained above, however, it is not enough that the evidence mightCourt of Appeals of Indiana | Memorandum Decision 70A01-1407-DR-313 | March 25, 2015 Page 8 of 8 support another conclusion; it must positively require it. 3 Because there is evidence supporting the trial court’s finding that the relo cation is not in Child’s best interests, we will not di sturb its judgment on appeal.

[14] Judgment affirmed.
Kirsch, J., and Crone, J., concur.

3 For this reason, Mother’s reliance on Dixon v. Dixon , 928 N.E.2d 24 (Ind. Ct. App. 2013), is unavailing. In that case, the trial court granted a peti tion to relocate, finding that relocation was in th e best interests of the child. This court affirmed, concludi ng that the trial court’s best-interes ts determination was supported by the evidence.