Court of Appeals of Indiana | Memorandum Decision 41A04-1701-DR-150 | July 17, 2017 Page 1 of 15

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.

ATTORNEY FOR APPELLANT

R. Lee Money

Greenwood, Indiana

ATTORNEYS FOR APPELLEE

Daun Weliever

Neal Bowling

Lewis Wagner, LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

G.H.,

Appellant-Respondent,

v.

R.E.,

Appellee-Petitioner

July 17, 2017

Court of Appeals Case No.

41A04-1701-DR-150

Appeal from the Johnson Circuit 

Court

The Honorable K. Mark Loyd, 

Judge

Trial Court Cause No.

41C01-0906-DR-269

Baker, Judge.
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[1] G.H. (Father) appeals from the trial court’s order permitting R.E. (Mother) to 

relocate to California with the parties’ children. Father argues that there is 

insufficient evidence supporting the order. Finding the evidence sufficient, we 

affirm.

Facts

[2] Mother and Father were married in 1997. Two children were born of the 

marriage: J.H., born in September 2005, and R.H., born in April 2007. The 

parties’ marriage was dissolved in 2010, at which time Mother became the 

children’s primary legal and physical custodian, and Father was given parenting 

time pursuant to the Parenting Time Guidelines.

[3] Since 2010, Mother has been the children’s primary caregiver. She has been 

heavily involved with the schools they have attended, has taken them to all 

medical appointments, and has supported their involvement with various 

extracurricular activities. 

[4] Shortly after the divorce, Father moved to another county, approximately sixty 

miles away from Mother and the children, because of an employment 

opportunity. Because of the distance, Father has not been as involved with the 

children’s schools, has never taken them to a medical appointment, and has not 

been involved with their extracurricular activities. He spends approximately 

three hours with the children each Thursday, and they spend every other 
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weekend with him.1 They also speak on the phone most nights. 

Notwithstanding the distance, Father and both children are bonded and have 

close relationships.

[5] Mother moved to Indiana in 1997 because of her marriage to Father. All of her 

extended family, including her parents, her sister, and her sister’s children, live 

in California. She has little to no support network in Indiana. Because of the 

lack of nearby support, Mother, who has a master’s degree in secondary 

education, has had to find employment that offers significant flexibility, but 

little income, so that she can be available for the children. While in Indiana, 

she has held various jobs. At the time of the hearing in this case, Mother was 

an independent consultant for Norwex, a company that distributes chemicalfree cleaning supplies, and a writer for the Malvern Schools. Both jobs allow 

her to have a work schedule that works around the times she needs or wants to 

be available for the children. If she had more support, such as nearby family 

members who could help with childcare and step in if one of the children got 

sick, she would be able to find and maintain a job with higher income.

[6] When Mother and Father divorced, Mother was unable to refinance the marital 

residence. Her parents liquidated part of a 401(k) account to provide her with 

sufficient funds to pay off the marital residence; as a result, she owes them 

 

1 Under the parties’ agreement, Father is also permitted to have the children spend Sunday nights with him. 

But because of the distance between his house and the children’s school, it would be impractical for them to 

do so. Therefore, he has given up that right out of concern for their well-being, as well as his own ability to 

get to work in a timely fashion on Monday mornings.
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$60,000. Her parents are aging and, while they still live independently and are 

mostly able to care for themselves, are reaching a point in time when they will

need more help for things such as keeping the house clean and maintaining the 

lawn and landscaping.

[7] On January 7, 2016, Mother filed a notice of her intent to relocate with the 

children to California. Father filed the requisite objection to the relocation, and 

a hearing was held on August 16 and October 25, 2016. At the hearing, Mother 

explained that if she and the children relocated to California, she planned to 

move in with her parents.2 This plan would enable her to provide help to her 

parents and would offer her free live-in childcare and more flexibility to find a 

job with a much higher income. She had not yet applied for any specific jobs 

because of the uncertainty surrounding the litigation, but would be able to 

maintain both her Norwex3 and Malvern jobs in California until she 

successfully found employment that paid more. The move would also enable 

her to sell the marital residence and repay her parents the money that she owed 

them.

 

2 There was some discussion at the hearing about a job that Mother had been interested in (but was filled by 

the time of the hearing) that would have been a two- to three-hour drive from her parents’ house. Mother 

explained that even if she had not been able to move in with her parents, that job would have provided 

sufficient income to allow her to maintain her own residence, and she would have been able to spend time 

helping her parents on the weekends. Regardless, at the time of the hearing, Mother’s intention and plan was 

to move in with her parents upon relocation.

3 The move to California would also afford Mother opportunities to dramatically expand her Norwex 

business.
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[8] Additionally, the move to California would provide the children with a close 

network of extended family members. While some of their extended family 

members on Father’s side of the family live in Indiana—indeed, a paternal aunt 

even lives across the street—they are not close to those family members and 

rarely, if ever, interact with them.

[9] The children are doing well in their current school in Indiana, but school 

professionals testified that they have no concerns about the children’s respective 

abilities to transition to a new school environment. The school district in which 

Mother’s parents live is a well-regarded district with good schools; indeed, 

Mother and her sister both attended those schools themselves. The children 

would attend school with their cousins.

[10] Mother and Father have an extremely contentious relationship that both have 

played a role in over the years. They have difficulty communicating in a 

respectful way and primarily do so over text messages. But Mother emphasizes 

that if she moves, she would continue to encourage the children to maintain a 

relationship with Father. Specifically, Mother proposes the following 

accommodations in the event of the children’s relocation:

• Father would get ten weeks, instead of seven, with the children during 

summer breaks.

• If Father’s spring break did not align with the children’s, he would get an 

additional week during the summer as compensation.

• Father would get one full week at Christmas time.

• The children and Father would have daily contact via phone or 

Facetime.

• Mother would help Father with the cost of plane tickets.
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• Mother would abate Father’s child support obligation.

Tr. Vol. II p. 83-86.

[11] On January 9, 2017, the trial court entered an order permitting the relocation of 

the children to California. Among other things, it found as follows:

4. [Mother]’s desire is motivated by a number of factors, 

including:

i) to reside with her folks . . . ;

ii) to assist her elderly parents in maintaining their 

residence and independence;

iii) live-in free child care;

iv) expanded job opportunities;

v) other relatives that live nearby; and,

vi) to use proceeds from sale of her house in Indiana to 

reimburse her parents’ financial contributions.

***

7. [Mother] has aptly demonstrated that her proposed 

relocation is made in good faith and for legitimate 

purposes. . . . [Mother]’s desire to be near a majority of her 

family, to support her elderly parents, and to bolster her 

financial opportunities are rational motivations in the 

context of this family.
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***

9. . . . As a result of the distance and his work schedule . . . , 

[Father] relies significantly on e-mail and telephonic 

communication to maintain regular contact with the 

children. In addition, he has opted to forgo his Sunday 

overnights based upon his relocation.

10. . . . [Mother] . . . intends to live with her parents, and has 

extended family support within that area. [Mother] has no 

family in Indiana. While [Father]has family in Indiana 

they are not close and do not regularly interact with the 

children.

***

12. [Mother] has historically been the primary care giver for 

the children and has regularly attended to their mental and 

physical healthcare, as well as educational needs. Further, 

[Mother] has researched the children’s educational options 

and circumstances upon relocation, and has a defined 

transition plan.

13. Ultimately, [Father] has failed to establish that the 

relocation is not in the children’s best interest.

Appealed Order p. 1-3. 

[12] On January 24, 2017, Father filed a motion to stay the trial court’s order 

pending appeal. On January 30, 2017, the trial court denied the motion to stay, 

observing that the trial court had been “notified by [Mother] that she has begun 

implementing the relocation and has already enrolled the children in school in 
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the State of California and they are attending classes at this time. . . . [The] 

Court does not find it to be in the children’s best interest to interrupt their 

current educational activities awaiting resolution of the Appellate process.” 

Appellant’s App. p. 13. Father now appeals.

Discussion and Decision

[13] Father appeals the trial court’s order permitting Mother to relocate with the 

children. In reaching its decision, the trial court entered findings and 

conclusions, our review of which is well settled:

Pursuant to Indiana Trial Rule 52(A), we do not “set aside the 

findings or judgment unless clearly erroneous, and due regard 

shall be given to the opportunity of the trial court to judge the 

credibility of witnesses.” Where, as here, the findings and 

conclusions are entered sua sponte, the specific findings control 

only as to the issues they cover, while a general judgment 

standard applies to any issue upon which the trial court has not 

found, and we may affirm a general judgment on any theory 

supported by the evidence adduced at trial.

Miller v. Carpenter, 965 N.E.2d 104, 108-09 (Ind. Ct. App. 2012) (internal 

citation and some internal quotation marks omitted).

[14] Our Supreme Court has “expressed a preference for granting latitude and 

deference to our trial judges in family law matters . . . because of trial judges’ 

unique, direct interactions with the parties face-to-face.” T.L. v. J.L., 950 

N.E.2d 779, 784 (Ind. Ct. App. 2011) (internal citations and quotation marks 

omitted). Consequently, we do not substitute our judgment for that of the trial 
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court if evidence and legitimate inferences therefrom support the trial court’s 

judgment; this serves the interests of finality in custody matters. Baxendale v. 

Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008).

[15] If a parent intends to relocate, she must file a notice of her intent to move with 

the court that issued the custody or parenting time order already in place. Ind. 

Code § 31-17-2.2-1(a). In response, the non-relocating parent may file a motion 

seeking a temporary or permanent order to prevent the relocation of the child. 

I.C. § 31-17-2.2-5. When such a motion is filed, a statutory burden-shifting 

analysis must be undertaken by the trial court:

(c) The relocating individual has the burden of proof that the 

proposed relocation is made in good faith and for a 

legitimate reason.

(d) If the relocating individual meets the burden of proof 

under subsection (c), the burden shifts to the nonrelocating 

parent to show that the proposed relocation is not in the 

best interest of the child.

Id. 

[16] There are a number of statutory factors that must be considered by the trial 

court that are set forth in Indiana Code section 31-17-2.2-1(b), but those factors 

apply only when the trial court must determine whether to modify a custody, 

parenting time, grandparent visitation, or child support order. Here, no such 

modifications are at issue; as such, we need not consider the factors set forth in 

that statute. Instead, we must simply determine whether the trial court properly 
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determined that Mother met her burden of proving that the relocation is made 

in good faith and for a legitimate reason and, if so, that Father failed to meet his 

burden of proof that the proposed relocation is not in the children’s best 

interests.

[17] There is no real dispute as to whether Mother proposed the relocation in good 

faith. At no point does Father assert or imply that she had underhanded 

motives or unspoken reasons for the move, and indeed, the record would not 

support such an allegation. We find no evidence causing us to question the trial 

court’s finding that the proposed relocation is being made in good faith.

[18] Father focuses, instead, on whether the trial court erroneously determined that 

Mother had a legitimate reason for the relocation. The trial court found that 

Mother had multiple reasons to seek the relocation, and each of these findings 

has support in the record.

1. Mother wishes to live with her parents. See Tr. Vol. II p. 46, 70.

2. Mother wishes to provide assistance to her parents in maintaining their 

residence and independence. See id. at 46-47, 72, 155.

3. Mother wishes to take advantage of free live-in child care. See id. at 47.

4. Mother hopes to take advantage of expanded job opportunities. See id. at 

49-50, 68, 70-71, 73.

5. Mother wishes, both for herself and for the children, to live near her 

extended family. See id. at 46-47.

6. Mother hopes to use proceeds from the sale of her home in Indiana to 

repay her parents. See id. at 69-70.
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As there is evidence supporting each of these findings in the record, we must 

simply determine whether these findings support the trial court’s conclusion 

that Mother had one or more legitimate reasons for the relocation.

[19] Mother’s reasons for moving can be separated into two basic categories: 

flexibility and finances; and family. With respect to flexibility and finances, it is 

undisputed that in Indiana, Mother has no family support and has been the 

children’s primary caregiver with little to no help with childcare, extracurricular 

activities, and the day-to-day job of raising happy, healthy children. As a result, 

she has had to take jobs for which she is overqualified and underpaid, so that 

she retains the flexibility she needs as primary caregiver. Unless a desirable job 

becomes available at a distance from her parents, Mother and the children plan 

to move in with them. In such a scenario, Mother would have live-in, free 

childcare. Furthermore, Mother’s parents, as well as her sister and her family,

would be available as support if something unexpected, such as a child illness, 

came up. With this support, Mother will be free to look for jobs that may offer 

less flexibility but higher income.

[20] With respect to family, Mother’s parents are aging. And while they are 

currently able to live independently and maintain their house and lawn, they 

will soon reach a point when they will need more help. Currently, Mother’s 

sister—who has five children of her own—bears the sole responsibility for 

providing help to their parents. Mother’s presence in California would help 

both her parents and her sister during the years when it will be most welcome. 
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Additionally, the children would benefit from proximity to an extended family 

that is undisputedly close, supportive, and loving.

[21] We find that the record supports the trial court’s conclusion that these reasons, 

taken as a whole, are legitimate reasons for the proposed relocation. See Gold v. 

Weather, 14 N.E.3d 836, 842-43 (affirming trial court’s conclusion that Mother’s 

relocation, which occurred so she could be closer to her immediate and 

extended family, was done for a legitimate purpose). We acknowledge Father’s 

arguments that Mother does not yet have a job, that she cannot prove 

definitively that her income will increase upon relocation, and that her parents 

do not yet need assistance. Notwithstanding all of these unknowns, however, 

what is known is that in Indiana, Mother is parenting the children with no 

support; in California, she would have extensive family support, including free 

child care; in California, she would be able to help with the inevitable decline of 

her aging parents; and in California, her children would have a large and 

supportive family nearby, including cousins their own ages. We find that the 

trial court did not err by finding that these are legitimate, good faith reasons for 

the proposed relocation. 

[22] As such, the burden shifts to Father to prove that the relocation would not be in 

the children’s best interests. The trial court found that Father opposed the 

relocation for a number of reasons:

i) he fears it will impair his relationship with the children;

ii) he is without the financial means to travel to California;
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iii) the children will be denied close contact with he and his 

family; and,

iv) [Mother] seeks to impede his relationship with the 

children.

Appealed Order p. 2. The understandable crux of all these reasons for Father’s 

opposition is a concern that the relocation will hamper his ability to maintain a 

close relationship with the children. That is a fair and worthy concern, and is 

often an unfortunate side effect of a parental relocation.

[23] Even while the children are living in Indiana, however, Father’s distance from 

their home has caused him to be unable to be a daily presence in their lives, at 

their school, and at their extracurricular activities. We intend to cast no 

aspersions on his decision to move for reasons of employment, but one result of 

that move—even if the move was the right thing to do—was a lessening of his 

presence in their lives. The children are used to having much of their contact 

with Father in their nightly phone calls, and that will continue after they move 

to California. And while they will lose their weekly hours with him on 

Thursdays and bimonthly weekends with him, the children will be able to spend 

ten weeks with him during the summer, as well as time during spring and 

winter breaks from school. Indeed, the amount of parenting time he has with 

the children will remain the same—it will just occur in large, discrete blocks of 

time rather than smaller blocks on a regular basis. Of course this is not ideal, 

but that does not mean that the move is not in their best interests.
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[24] Mother has promised to help with the cost of plane tickets and to abate Father’s 

child support obligation, which will ease any financial strain on Father. She 

has offered more summer parenting time to him than he would otherwise be 

entitled, and has promised daily phone or Facetime contact with the children. 

Mother and Father have a contentious relationship, and we acknowledge, as 

did the trial court, that at times she has impeded his relationship with the 

children. But there is no evidence of any such impediment since the trial court 

entered an order in a 2013 contempt proceeding. And we note, as did the trial 

court, that it is readily apparent from the record in this case that the 

contentiousness in the relationship, as well as the parties’ difficulties with 

communication, has been a two-way street for which both parents must share 

blame. That said, of course if Mother fails to comply with the terms of the trial 

court’s orders in the future, Father would again be free to file contempt 

proceedings. But at this time, there is no evidence supporting Father’s concern 

that Mother will impede his relationship with the children upon relocation.

[25] As noted above, the relocation will offer the children a close and supportive 

extended family network. They will attend good schools with their cousins. 

They will be cared for by grandparents and their aunt and uncle, as well as the 

continued care provided by Mother. They will lose regular in-person contact 

with their Father, but will still be able to maintain a relationship with him over 

the phone every day and in person during school breaks. Given this record, we 

do not find that the trial court erred by concluding that Father did not meet his 

burden of proving that the relocation would not be in the children’s best 
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interests. Father’s arguments to the contrary amount to a request that we 

reweigh evidence and reassess witness credibility, which our standard of review 

does not permit.

[26] The judgment of the trial court is affirmed.

Barnes, J., and Crone, J., concur.