C.Z. v. J.Z. (mem. dec.) ( 2017 )


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  •       MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                      FILED
    regarded as precedent or cited before any
    Aug 30 2017, 6:33 am
    court except for the purpose of establishing
    the defense of res judicata, collateral                                    CLERK
    Indiana Supreme Court
    estoppel, or the law of the case.                                         Court of Appeals
    and Tax Court
    ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
    Monty K. Woolsey                                         Donna Jameson
    Andrew R. Bloch                                          Greenwood, Indiana
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    C.Z.,                                                    August 30, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    41A04-1611-DR-2456
    v.                                               Appeal from the Johnson County
    Circuit Court
    J.Z.,                                                    The Honorable K. Mark Lloyd,
    Appellee-Plaintiff                                       Judge
    Trial Court Cause No.
    41C01-1404-DR-245
    Altice, Judge.
    Case Summary
    [1]   C.Z. (Father) appeals the child custody order entered following the dissolution
    of his marriage to J.Z. (Mother). On appeal, Father raises the following issues:
    Court of Appeals of Indiana | Memorandum Decision 41A04-1611-DR-2456 | August 30, 2017         Page 1 of 11
    1. Did the trial court abuse its discretion in awarding primary
    physical custody to Mother?
    2. Did the trial court err in finding that 
    Ind. Code § 31-17-2.2
    -1
    (the Relocation Statute) did not apply?
    Mother cross appeals, raising the following issue:
    3. Did the trial court abuse its discretion in awarding joint legal
    custody?
    [2]   We affirm.
    Facts & Procedural History
    [3]   Mother and Father were married in 2010, and their daughter, C.Z. (Child), was
    born in 2012. Father is a physician and Mother is a licensed speech and
    language pathologist. During the marriage, the parties lived in Greenwood,
    Indiana. In April 2014, when Child was one and a half years old, Mother filed
    a petition for dissolution of marriage, and Mother and Child moved out of the
    marital residence and into an apartment in Greenwood.
    [4]   The trial court entered a preliminary order on June 23, 2014, pursuant to which
    Mother was awarded temporary primary physical custody and Father was
    awarded parenting time. On December 16, 2014, the trial court entered a
    partial decree of dissolution, but noted that issues relating to child custody
    remained open.
    Court of Appeals of Indiana | Memorandum Decision 41A04-1611-DR-2456 | August 30, 2017   Page 2 of 11
    [5]   On June 10, 2015, Mother filed a Notice of Intent to Relocate, in which she
    indicated a desire to move with Child to Columbus, Indiana, which is
    approximately thirty miles away from Mother’s Greenwood apartment.
    Mother had lived in Columbus prior to the marriage and Mother’s twin sister
    and her family continued to reside there. Mother had accepted a promotion to
    the position of Program Director at one of her employer’s campuses in
    Columbus. The position came with a significant pay increase and Mother’s
    work week was increased from thirty to forty hours. Mother and Child
    continued to reside at Mother’s apartment in Greenwood pending the trial
    court’s final custody order, but Mother indicated that her employer would
    require her to move to Columbus if she wished to keep her new position. There
    were no similar positions available to Mother in Greenwood. Father objected
    to Mother’s proposed relocation.
    [6]   A final hearing on all pending matters concluded on March 28, 2016. On July
    28, 2016, the trial court entered its supplemental decree of dissolution, in which
    it awarded primary physical custody to Mother and ordered the parties to share
    joint legal custody. In its findings, the trial court noted that it was “not
    convinced” that the Relocation Statute applied to initial custody determinations
    like the one at issue here, but nevertheless found that Mother had a good faith
    reason for relocating and that relocation was in Child’s best interest and would
    have a minimal impact on parenting time. Appellant’s Appendix Vol. 2 at 14.
    Father filed a motion to correct error, which was denied after a hearing. Father
    now appeals. Additional facts will be provided as necessary.
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    Discussion & Decision
    [7]   Where, as here, a trial court enters special findings and conclusions sua sponte,
    the specific findings and conclusions control only as to the issues they cover,
    while a general judgment standard applies to any issue upon which the trial
    court has not made findings. Tew v. Tew, 
    924 N.E.2d 1262
    , 1264 (Ind. Ct. App.
    2010), trans. denied. We review the trial court’s specific findings and
    conclusions using a two-tiered standard of review: first, we consider whether
    the evidence supports the findings, and second, whether the findings support
    the judgment. 
    Id. at 1264-65
    . We will set aside the trial court’s findings and
    conclusions only if they are clearly erroneous, that is, if the record contains no
    facts or inferences supporting them. 
    Id. at 1265
    . We will affirm a general
    judgment on any theory supported by the evidence presented. 
    Id.
     In reviewing
    the findings and judgment, we will neither reweigh the evidence nor judge the
    credibility of witnesses, and we will consider only the evidence most favorable
    to the ruling. 
    Id.
    [8]   Furthermore, “there is a well-established preference in Indiana ‘for granting
    latitude and deference to our trial judges in family law matters.’” Steele-Giri v.
    Steele, 
    51 N.E.3d 119
    , 124 (Ind. 2016) (quoting In re Marriage of Richardson, 
    622 N.E.2d 178
    , 178 (Ind. 1993)). As our Supreme Court has explained:
    Appellate deference to the determinations of our trial court
    judges, especially in domestic relations matters, is warranted
    because of their unique, direct interactions with the parties face-
    to-face, often over an extended period of time. Thus enabled to
    assess credibility and character through both factual testimony
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    and intuitive discernment, our trial judges are in a superior
    position to ascertain information and apply common sense,
    particularly in the determination of the best interests of the
    involved children.
    Best v. Best, 
    941 N.E.2d 499
    , 502 (Ind. 2011). It is not enough on appeal that the
    evidence might support some other conclusion; rather, the evidence must
    positively require the result sought by the appellant. D.C. v. J.A.C., 
    977 N.E.2d 951
    , 957 (Ind. 2012). Accordingly, we will not substitute our own judgment if
    any evidence or legitimate inferences support the trial court’s judgment. 
    Id. 1
    . Physical Custody
    [9]   Father argues that the trial court’s decision to award primary physical custody
    to Mother was an abuse of discretion. In an initial custody determination, both
    parents are presumed equally entitled to custody, and “[t]he court shall
    determine custody and enter a custody order in accordance with the best
    interests of the child.” I.C. § 31-17-2-8. See also Kondamuri v. Kondamuri, 
    852 N.E.2d 939
    , 945 (Ind. Ct. App. 2006). In determining the child’s best interests,
    the trial court must consider all relevant factors, including specifically the
    following:
    (1) The age and sex of the child.
    (2) The wishes of the child’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.
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    (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 . . . .
    The trial court’s decisions on child custody are reviewed only for an abuse of
    discretion. Sabo v. Sabo, 
    858 N.E.2d 1064
    , 1068 (Ind. Ct. App. 2006).
    [10]   Father concedes that the trial court’s findings are supported by the evidence, but
    argues that the findings do not support the trial court’s decision to award
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    Mother primary physical custody. According to Father, the findings and record
    compel a conclusion that he should have been awarded primary physical
    custody or, “at a minimum,” an award of joint physical custody. Appellant’s
    Brief at 22. Father’s arguments are nothing more than a request to reweigh the
    evidence and substitute our judgment for that of the trial court, which we will
    not do.1
    [11]   The trial court noted that Mother believed Father was a “good dad[.]”
    Appellant’s Appendix at 13. The court found further that Father “either does not
    feel the same about [Mother’s] parenting or is unwilling to acknowledge the
    same” and that “[i]n either case, [Father’s] actions during the proceedings make
    his perspective suspect[.]” 
    Id.
     The court found that Father had “repeatedly
    demonstrated his unwillingness and/or inability to cooperate with decision
    making through co-parenting” and that “[d]uring the provisional period and
    throughout numerous texts and emails with [Mother] regarding parenting time
    with [Child], [Father] remain[ed] argumentative and abrasive.” Id. at 12. The
    trial court further found that although Mother would ask for Father’s
    participation and input regarding the parenting-time schedule, Father would not
    contribute his thoughts or preferences in a meaningful manner. The court also
    noted that Father claimed to be concerned for Child’s safety in Mother’s care,
    1
    Father’s arguments rely in large part on disputed evidence unfavorable to the trial court’s ruling, which we
    will not consider. Father also misstates the record by asserting that Mother relocated during the pendency of
    the custody proceedings. The record clearly establishes that Mother continued to reside at her Greenwood
    apartment pending the trial court’s ruling.
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    but found those concerns to be “largely unsupported by the evidence or grossly
    exaggerated.” Id.
    [12]   These findings support a conclusion that if Father had been awarded primary
    physical custody, he would have been unlikely to effectively co-parent with
    Mother and facilitate her relationship with Child. The trial court found that
    Mother, on the other hand, had continued to attempt to work with Father to
    facilitate his parenting time with Child despite his abrasive attitude and lack of
    cooperation. Indeed, the record shows that Mother has exhibited
    commendable flexibility and willingness to accommodate Father’s irregular
    work schedule, and she has allowed him more time with Child than required by
    the Indiana Parenting Time Guidelines. These findings are sufficient to support
    the trial court’s conclusion that awarding primary physical custody to Mother
    was in Child’s best interests.
    2. Relocation
    [13]   Father next argues that the trial court erred as a matter of law by concluding
    that the Relocation Statute was inapplicable to this case. Father has
    mischaracterized the trial court’s order. Although the trial court expressed
    doubt as to whether the Relocation Statute applied, it nevertheless found that
    application of the Relocation Statute did not alter its ultimate custody decision.
    Specifically, the trial court found as follows:
    The Court notes that it is not convinced that the Relocation
    Statute . . . applies in these circumstances. As there has, until
    now, been no final custody order, it would appear that the
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    pertinent analysis is under the factors set forth in I.C. 31-17-2-8.
    However, in this instance the conclusion of the analysis under
    both statutes is the same as there is certainly a good faith reason
    for [Mother] to relocate back to Columbus and such a relocation
    is certainly in the child’s best interest, with minimal impact to
    parenting time.
    Appellant’s Appendix Vol. 2 at 14. See I.C. § 31-17-2.2-5 (providing that if a
    relocating parent satisfies his or her burden of proving that the proposed
    relocation is made in good faith and for a legitimate reason, the burden shifts to
    the nonrelocating parent to prove that the proposed relocation is not in the
    child’s best interest); I.C. § 31-17-2.2-1(b) (providing that a court considering a
    relocation petition should consider, among other things, the distance involved,
    the hardship and expense for the nonrelocating parent to exercise parenting
    time, and the feasibility of preserving the relationship between the
    nonrelocating parent and child through suitable parenting time).
    [14]   Thus, contrary to Father’s arguments on appeal, the trial court clearly
    considered the Relocation Statute and performed the necessary analysis. The
    trial court was not, as Father seems to suggest, required to make specific
    findings on each of the factors set forth in the Relocation Statute. See H.H. v.
    A.A., 
    3 N.E.3d 30
    , 36 (Ind. Ct. App. 2014) (explaining that when considering a
    request to relocate, “while the trial court is to consider all relevant factors, [it] is
    not necessarily required to make specific findings on each factor unless
    requested to do so by the parties”). Father makes no attempt to challenge the
    trial court’s findings that Mother’s proposed relocation was made in good faith
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    and for a legitimate purpose or its finding that the relocation was in Child’s best
    interests, and we conclude that both findings were clearly supported by the
    evidence. The trial court’s ruling on Mother’s petition to relocate was not an
    abuse of discretion.
    3. Joint Legal Custody
    [15]   On cross-appeal, Mother argues that the trial court abused its discretion in
    awarding joint legal custody. I.C. § 31-17-2-13 provides that a court may award
    joint legal custody if doing so is in the best interest of the child. In determining
    whether an award of joint legal custody would be in the child’s best interest, the
    court must “consider it a matter of primary, but not determinative, importance
    that the persons awarded joint custody have agreed to an award of joint legal
    custody.” I.C. § 31-17-2-15. The court must also consider the following
    factors:
    (1) the fitness and suitability of each of the persons awarded joint
    custody;
    (2) whether the persons awarded joint custody are willing and
    able to communicate and cooperate in advancing the child’s
    welfare;
    (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) whether the child has established a close and beneficial
    relationship with both of the persons awarded joint custody;
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    (5) whether the persons awarded joint custody:
    (A) live in close proximity to each other; and
    (B) plan to continue to do so; and
    (6) the nature of the physical and emotional environment in the
    home of each of the persons awarded joint custody.
    Id.
    [16]   In this case, the trial court noted that the parties had not agreed to joint legal
    custody, but found that all other factors weighed in favor of an award of joint
    legal custody. On appeal, Mother argues that an award of joint custody was an
    abuse of discretion because the parties have been unable to communicate
    effectively concerning Child’s upbringing. We must reject this invitation to
    reweigh the evidence. Although the record plainly indicates that Mother and
    Father do not get along, they nevertheless managed to communicate effectively
    enough throughout the provisional period when it came to Child. Accordingly,
    we cannot conclude that the trial court’s decision to award joint legal custody
    was an abuse of discretion.
    [17]   Judgment affirmed.
    [18]   Baker, J. and Bailey, J., concur.
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Document Info

Docket Number: 41A04-1611-DR-2456

Filed Date: 8/30/2017

Precedential Status: Precedential

Modified Date: 8/30/2017