The opinion
MEMORANDUM DECISION
Jun 03 2015, 10:45 am
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 ATTORNEYS FOR APPELLEE
Donald E. James James C. Yankosky
Don James & Associates, LLC Angelica N. Fuelling
Fort Wayne, Indiana Tourkow, Crell, Rosenblatt, & Johnston,
LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re The Paternity of K.R.K. June 3, 2015
Court of Appeals Case No.
K.O. 02A03-1408-JP-274
Appeal from the Allen Superior
Appellant-Defendant,
Court
v. The Honorable Daniel G. Heath,
Judge
R.H.K.,
Cause No. 02D07-1001-JP-8
Appellee-Plaintiff
Friedlander, Judge.
[1] K.O. (Mother) appeals from the denial of her petition to relocate, presenting the
following consolidated, restated issue on appeal: Did the trial court commit
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clear error in finding that relocation of K.R.K. (Child) was not in Child’s best
interest?
[2] We affirm.
[3] Mother and R.K. (Father) are the biological parents of Child, who was born in
2008. Father’s paternity was established in Allen Superior Court on April 8,
2010. Mother also has a daughter who is approximately two years older than
Child. Father believed that he was the biological father of the older child until
paternity tests in 2010 proved otherwise. After tests confirmed that Father was
the biological parent of Child, Father was granted parenting time pursuant to
the Indiana Parenting Time Guidelines (the Guidelines). Father exercised
parenting time with Child every other weekend and on Wednesday evenings.
In addition, Father exercised parenting time with Child half of each summer,
on alternating spring breaks, and on alternating holidays.
[4] Mother and Timothy Oxendine met in the summer of 2012. Although
Oxendine had been a resident of Fort Wayne since 1989, his extended family
lived in Calvin, Kentucky. On October 14, 2012, Oxendine suffered a heart
attack. He was advised in March 2013 that he would need a defibrillator to
improve his heart rate and rhythm. On May 31, 2013, Mother and Oxendine
married. On August 21, 2013, Mother filed a notice of her intent to relocate
with Child from Ossian, Indiana to Calvin, Kentucky. At the time, all of
Child’s biological family lived within a sixty-mile radius of Ossian. In the
notice, Mother asserted that she wanted to relocate for the following reasons:
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[M]y husband and myself are disabled and will not be returning
to work. We would like to relocate to be closer to grandparents.
We will be moving into the holler, where it is quiet and away
from the city. We want to be out of the city, out of our trailer,
and away from Fort Wayne. It seems as though the gangs,
drugs, shootings, and homicides are getting worse and out of
control. I don’t want my children raised around that. I also
don’t want them to be afraid to leave the house. I want them to
be able to go outside and play and [sic] their own front yard.
Appellant’s Appendix at 82.
[5] On December 20, 2013, Mother filed a “letter in addendum”, providing further
rationale for relocation. Id. at 83. Referring to the original notice, she
apologized for making “it sound as though Fort Wayne, IN was an awful place
to live.” Id. She then expanded upon the reasons for relocating, including: 1)
they would be closer to Mother’s mother1 and Oxendine’s father, with whom
Child shared close relationships; 2) the family would benefit financially because
they would pay no rent or house payment as a result of the fact that the home
into which they would move was owned by Oxendine’s extended family; 3)
Child would be involved in the church in which his step-father was raised; and
4) Child would benefit by not being separated from his half-sister and step-
father, with whom he shared close relationships.
[6] Oxendine’s employer-provided health insurance in Indiana would not cover the
cost of the procedure to implant a defibrillator. Also, according to Oxendine,
1
Mother’s mother planned to relocate to Kentucky when Mother did.
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he was not eligible for Medicaid in Indiana. Oxendine learned, however, that if
he were a resident of Kentucky, he would be eligible for “Kentucky Medicaid”.
Transcript at 60. He traveled to Kentucky on December 21, 2013, for the
purpose of having a defibrillator implanted. On December 22, 2013, before a
defibrillator was implanted, Oxendine suffered a second heart attack. At the
time of the final hearing in this matter, Oxendine received $1474 per month in
Social Security Disability (SSD) benefits. In addition, he was told by a Social
Security office in Kentucky that each child living with him in Kentucky would
receive a $386 monthly SSD benefit. In addition to Child and Child’s half-
sister, Oxendine had two of his biological children living with him. At the time
of the final hearing, Oxendine had not yet received a defibrillator.
[7] Father opposed the motion to relocate, and, in addition, filed a motion for
change of custody. A hearing was conducted on February 21, 2014, and
continued to February 26, 2014. It was at this hearing that Mother indicated
for the first time that one reason for the relocation was to enable Oxendine to
qualify for medical benefits that were ostensibly unavailable to him in Indiana.
Following the hearing, the trial court entered impressively thorough findings of
fact and conclusions of law. After finding that Mother had met her burden of
proof by a preponderance of the evidence to demonstrate that the request for
relocation was made in good faith and for legitimate reasons, the court
nonetheless determined that relocation was not in the best interest of Child,
entering the following Conclusions of Law in support of its ruling:
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6. Although the transportation expense would create some
hardship for [Mother], the transportation drive time could
create some hardship for [Father]. On the other hand, the
same would be true if [Father] were granted custody of
[Child].
7. [Mother’s] “best interest” evidence and arguments focused
on [Child’s] family – and not [Child] specifically.
However, [Father’s] “best interest” evidence and
arguments regarding county poverty and high school
comparisons were of limited value.
8. The Court weighs heavily that [Father] has been a father
involved in every facet of [Child’s] life and [Father] has
exercised his opportunities for parenting time pursuant to
the Indiana Parenting Time Guidelines (without distance
as a major factor), except for National Guard service, and
has provided regular financial support for [Child].
9. Imposing the Indiana Parenting Time Guidelines (with
distance as a major factor) would curtail approximately
thirty-five (35) standard overnight parenting time periods
plus any additional parenting time as agreed by the parties
between [Father] and [Child].
10. Given the totality of circumstances in this case, the Court
could not find that diminishing [Father’s] parenting time
with [Child] was in [Child’s] best interest.
Appellant’s Appendix at 29. The trial court also denied Father’s petition for
change of custody. Mother appeals the denial of her petition to relocate.
[8] Where the trial court enters special findings of fact and conclusions 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, we consider
whether the evidence supports the findings, and second, whether the findings
support the judgment. Id. The trial court’s findings and conclusions will be set
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aside only if they are clearly erroneous—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. In
addition, we will consider only the evidence favorable to the trial court’s
judgment. Id.
[9] 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 legislation of the 2015
First Regular Session of the 119th General Assembly effective through April 23,
2015); I.C. § 31–17–2.2–5 (West, Westlaw current with legislation of the 2015
First Regular Session of the 119th General Assembly effective through April 23,
2015). Father did both. Where 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 burden shifts to the
nonrelocating parent to show that the proposed relocation is not in the best
interest of the child.” I.C. § 31–17–2.2–5(d).
[10] The trial court found that Mother had satisfied her burden of proving that her
request for relocation was made in good faith and for a legitimate purpose;
Father does not challenge that finding. Mother contests the trial court’s
subsequent determination that Father satisfied his burden of establishing that
the proposed relocation was not in Child’s best interest.
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[11] In considering a proposed relocation, a trial court must weigh several factors,
including the distance involved in the proposed relocation, the hardship and
expense involved for the nonrelocating individual to exercise parenting time or
grandparent visitation, “[t]he 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”, and “[o]ther factors affecting the best interest of
the child.” I.C. § 31–17–2.2–1(b)(1), (2), (3) and (6), respectively; see also D.C. v.
J.A.C., 977 N.E.2d 951 (Ind. 2012). “The ‘[o]ther factors affecting the best
interest of the child’ include, by implication, the factors set forth for custody
determinations 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 (West, Westlaw current with legislation of the 2015 First
Regular Session of the 119th General Assembly effective through April 23,
2015) provides that the court “shall consider all relevant factors,” including,
among others, the child’s age and sex, the child’s parents’ wishes, the child’s
wishes (with more consideration given to the wishes of a child who is at least
fourteen years of age), the child’s interaction and interrelationship with his or
her parents, siblings, and any other persons who may significantly affect the
child’s best interests, and the child’s adjustment to home, school and
community.
[12] In finding that relocation was not in Child’s best interest, the trial court found
that, except when he was deployed in the National Guard 2011, Father has
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been “involved in every facet of Child’s life.” Appellant’s Appendix at 29. Father
exercises his mid-week parenting time unless his work duties interfere, and also
exercises his alternate holidays and one-half summer parenting time. The court
found that Father’s parenting time would be curtailed by Mother’s relocation
with Child to an area approximately 378 miles away. From that distance,
Father would not be able to monitor Child’s school activities except by
computer and phone. Moreover, Father would not be able to participate in
person in Child’s sports activities during the school year, although he would be
able to participate in Child’s summer sports activities. The trial court also
found that Child has close and loving relationships with both sides of his
extended family, including Father’s, and his contact with Father’s extended
family would be significantly reduced if Child relocated to Kentucky. These
findings are supported by the evidence and thus not clearly erroneous. Based
largely upon these findings, the trial court found that relocation was not in
Child’s best interest.
[13] Mother’s arguments on appeal center upon the benefits of relocation to her
household, of which Child obviously is currently a member. For instance, she
notes that the medical treatment that Oxendine needs, which costs $160,000-
$185,000, is covered by insurance if he is a Kentucky resident, but is not
covered if he lives in Indiana. She notes also that the family can live rent-free in
Kentucky in a house, which would not be the case were they to remain in
Indiana, where they live in a mobile home. Mother also points out that the
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family’s combined monthly income, including dependent care SSD income,
would be approximately twenty-five percent higher in Kentucky than Indiana.
[14] We are not inclined to dispute Mother’s claim that her family, and by extension
Child, would benefit in certain ways if she was permitted to relocate Child to
Kentucky. We cannot, however, reverse a trial court’s determination
concerning a relocation petition merely because the evidence might support a
different determination. Instead, the evidence “must positively require” the
result sought by the appellant. D.C. v. J.A.C., 977 N.E.2d at 957. As our
Supreme Court has explained, appellate deference to trial court judges is
especially appropriate in domestic relations matters because of their “unique,
direct interactions with the parties face-to-face, often over an extended period of
time.” Id. at 956 (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)).
[15] So it is here. There is evidence to support the trial court’s findings relative to
the negative impact that relocation to Kentucky would have with respect to
Child’s contact and interaction with Father and Father’s extended family.
Mother’s arguments on appeal essentially are that these negatives are
outweighed by the aforementioned benefits of relocation to Child and Mother’s
family. This is tantamount to a request that we reweigh the evidence and reach
a conclusion opposite to the trial court’s. Our Supreme Court made it clear in
D.C. v. J.A.C. that we cannot do this. Because there is evidence supporting the
trial court’s finding that the requested relocation is not in Child’s best interests,
we will not disturb its judgment on appeal.
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[16] Judgment affirmed.
Baker, J., and Najam, J., concur.
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