Briana King v. Matthew King (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Nov 08 2019, 6:41 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Joe Duepner
Duepner Law LLC
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Briana King, November 8, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-DC-1098
v. Appeal from the
Hamilton Superior Court
Matthew King, The Honorable
Appellee-Respondent J. Richard Campbell, Judge
Trial Court Cause No.
29D04-1705-DC-4223
Vaidik, Chief Judge.
Case Summary
[1] Two months after the trial court dissolved the marriage of Briana King
(“Mother”) and Matthew King (“Father”), Mother filed a notice of intent to
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relocate to Mississippi with the parties’ two children. The trial court found that
Mother’s reasons for moving to Mississippi were not legitimate. We affirm the
trial court.
Facts and Procedural History
[2] Mother and Father got married in 2013 and have two daughters, C.K. (born in
October 2013) and A.K. (born in March 2015). Mother filed for divorce in
January 2018. On October 29, 2018, the parties entered into a settlement
agreement, which provided that the parties would share legal custody of the
children with Mother having primary physical custody and Father having
parenting time according to the Indiana Parenting Time Guidelines plus
“twenty (20) additional parenting time overnights . . . such as the parties shall
agree.” Appellant’s App. Vol. II p. 20. Also according to the settlement
agreement, Father would pay $259 per week in child support. The trial court
approved the settlement agreement and entered a decree of dissolution of
marriage on November 5, 2018.
[3] Two months later, on January 8, 2019, Mother filed a notice of intent to
relocate about 700 miles away to Madison, Mississippi, where her best friend
lives. According to the notice, Mother had “job opportunities in MS that
w[ould] increase her yearly salary” and her best friend would provide “child
care free of charge.” Id. at 37. Father objected to Mother’s notice of intent to
relocate, explaining that he regularly exercises parenting time with the children
and is actively involved in their lives, that Mother’s relocation would
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“substantially interfere with his parenting time,” and that both Father’s and
Mother’s families live in central Indiana. Id. at 40. Father also noted that he
believed the real reason Mother wanted to move to Mississippi was to be near
her boyfriend Brock.
[4] At the March 2019 hearing, Mother testified that the “main reason” she wanted
to move to Mississippi was for “[h]elp with my kids.” Tr. p. 7. She
acknowledged that her brother and parents live in central Indiana but said that
she cut off a relationship with her parents after she filed for divorce and that she
and the children had not seen them in about a year. See id. at 38. Mother said
that if the trial court allowed her and the children to move to Mississippi, they
would live rent-free with her best friend for about a year, then she would buy
her own house. Mother explained that she and the children had visited
Mississippi three times—in August 2018 as well as over “Thanksgiving and
Christmas breaks” in 2018—and that her children got along well with her best
friend’s children. Id. at 11, 32. Mother testified that she met Brock on her
August trip to Mississippi and that they got engaged on her “Christmas break”
trip. Id. at 36. However, Mother claimed that Brock was not “any part of the
reason why [she] wanted to move to Mississippi.” Id. at 13; see also id. at 42, 44.
In fact, she said that she “d[idn’t] plan on marrying him right now.” Id. at 37.
When asked if she was ever going to move in with Brock, Mother responded
that she would “if” they got married. Id. at 42. Mother noted that she and
Father were engaged for five years before they got married.
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[5] Mother, a nurse practitioner, testified that another reason she wanted to move
to Mississippi was for “a better job.” Id. at 36. Mother said that she earned
$1,860 a week (or $46.50/hour, see Appellant’s Br. p. 6) in Indiana and had
applied for higher-paying jobs in Mississippi in July 2018—before she and
Father entered into the settlement agreement—and had gotten two job offers,
one for $65/hour and another for $75/hour. Mother, however, did not present
any documentary evidence to support these offers, and she could not remember
the name of one of the companies that had offered her a job. Mother explained
that one of the offers was for a “telemedicine” position. Tr. p. 29. Mother
acknowledged that she had not researched any “telemed” positions in Indiana.
Id. at 36-37. Mother testified that she had a nanny for the children for about
three years and that she paid the nanny $460/week. She said that if she moved
to Mississippi, her best friend would provide free childcare, saving her
approximately $1,800 per month. Finally, Mother testified that if the trial court
did not allow her to move with the children to Mississippi, she would not go.
[6] Father testified that he did not want the children to move to Mississippi because
of the distance, the impact it would have on his parenting time, and the fact that
both his family and Mother’s family live in central Indiana. Father said that he
wanted more time with the children but that Mother did not always give him
extra time. See, e.g., id. at 50-51, 64, 76-77. Father explained that his parents
live in Avon and that they spend a lot of time with the children, which Mother
herself acknowledged. Id. at 35. In addition, Father testified that he believed
Mother was “really going to Mississippi to be with” Brock. Id. at 67. Father
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said that before he and Mother entered into the settlement agreement in
October 2018, Mother had never discussed with him the possibility of her and
the children moving to Mississippi. Id. Finally, Father’s mother, a registered
nurse who typically works three ten-hour shifts a week, testified that Mother
had not asked her for any help with the children since the divorce even though
she had offered to help.
[7] In April 2019, the trial court issued an order denying Mother’s request to
relocate to Mississippi with the children. The order provides, in relevant part:
11. Mother failed to prove that her reasons for relocating as
stated in her Notice of Intent to Relocate [were] legitimate,
because it appears that the actual reason for wanting to relocate is
her recent engagement.
12. Engagement and re-marriage can be a very legitimate reason
for a parent to relocate, but Mother played down that purpose in
her testimony. Mother testified that her engagement would last
for at least two years. For that reason, her intent to remarry is
not a legitimate reason to relocate at this time, even if she had
raised it as a reason.
13. The Court finds that Mother failed to prove that
opportunities for a higher paying job and free child care are
legitimate reasons to relocate. Moreover, Mother’s engagement
is not [a] legitimate reason primarily because of the unsettled date
of her proposed marriage.
14. Since Mother testified that she would not be relocating if the
Court denies her request to take her children, the Court does not
need to decide what would be in the best interest of the children
for custody.
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Appellant’s App. Vol. II pp. 75-76.
[8] Mother now appeals.
Discussion and Decision
[9] We first note that Father did not file an appellee’s brief. When the appellee fails
to submit a brief, we will not develop an argument on his behalf but, instead,
we may reverse the trial court’s judgment if the appellant’s brief presents a case
of prima facie error. GEICO Ins. Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct.
App. 2014).
[10] Mother contends that the trial court erred in denying her request to relocate to
Mississippi with the children. On appellate review of judgments with findings
and conclusions, we “shall 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 the witnesses.” Ind. Trial Rule 52(A). We do not
reweigh the evidence or assess the credibility of witnesses, and the evidence
should be viewed most favorably to the judgment. Best v. Best, 941 N.E.2d 499,
502 (Ind. 2011). In conjunction with Trial Rule 52, there is a longstanding
policy that appellate courts should defer to the determination of trial courts in
family-law matters. D.G. v. S.G., 82 N.E.3d 342, 348 (Ind. Ct. App. 2017),
trans. denied. As our Supreme Court has explained:
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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
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, 941 N.E.2d at 502.
[11] Mother argues that the trial court erred in finding that she did not have good-
faith and legitimate reasons for moving to Mississippi. A parent intending to
relocate with a child must prove “that the proposed relocation is made
in good faith and for a legitimate reason.” Ind. Code § 31-17-2.2-5(e) (formerly
subsection (c)). If the relocating parent meets that burden of proof, “the burden
shifts to the nonrelocating parent to show that the proposed relocation is not in
the best interest of the child.” Id. at (f) (formerly subsection (d)).
[12] No explicit criteria exist to determine whether a relocation is made
in good faith and for a legitimate reason; however, “more than a mere pretext”
is required. T.L. v. J.L. 950 N.E.2d 779, 787 (Ind. Ct. App. 2011), reh’g
denied. Relocating for financial reasons, for employment opportunities, and to
be near family are commonly acceptable reasons to support good faith and
legitimacy. Id. at 787-88; see also Gold v. Weather, 14 N.E.3d 836, 842 (Ind. Ct.
App. 2014), trans. denied.
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[13] Here, the trial court found that Mother’s stated reasons for moving to
Mississippi—for a higher-paying job and free childcare—were not legitimate.
Mother testified that she had applied for jobs in Mississippi in July 2018, while
the divorce was pending and before the parties entered into the settlement
agreement. Yet, Mother never told Father about wanting to move with the
children to Mississippi. Accordingly, when the parties entered into the
settlement agreement in October, Father had no idea about Mother’s plans.
And when the trial court approved the settlement agreement and dissolved the
parties’ marriage a couple days later, it had no idea either. See Ind. Code § 31-
17-2.2-2 (noting that if a party provides notice of relocation at an initial hearing
to determine custody, the court may consider the relocation factors in its initial
custody determination). Although Mother testified that she had received two
job offers in July 2018, she didn’t present any documentary evidence of those
offers or that they were still open some nine months later. In addition, Mother
admitted that she hadn’t searched for any “telemed” positions in Indiana. As
for childcare, Mother claimed that her best friend would provide free childcare,
saving her approximately $1,800 per month. Notably, however, Mother did not
claim that she was unable to afford her current childcare arrangement. Indeed,
when the parties entered into the settlement agreement in October, they
attached a Child Support Obligation Worksheet, which established Father’s
child support at $259 per week. On this worksheet, Mother’s childcare
expenses are listed at $450 per week.
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[14] Based on this evidence, the trial court found that although these could be good-
faith and legitimate reasons, they were pretext for Mother’s real reason for
wanting to move to Mississippi—Brock. However, the trial court found that
this reason was not legitimate because of the “unsettled date of [their] proposed
marriage.” That is, Mother testified that she “d[idn’t] plan on marrying [Brock]
right now,” didn’t “plan on moving in with him” anytime soon, and would
move in with him “if” they got married. Tr. pp. 37, 39, 42. Accordingly, the
trial court found that although “[e]ngagement and re-marriage can be a very
legitimate reason for a parent to relocate,” it wasn’t in this case. It is not for us
to second-guess the trial court’s assessment of Mother’s credibility or to reweigh
the evidence. We therefore affirm the trial court.
[15] Affirmed.
Riley, J., and Bradford, J., concur.
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