The opinion
MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 07 2017, 9:40 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Daniel P. Kensinger
Shine & Hardin, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Marriage of: March 7, 2017
Court of Appeals Case No.
35A02-1607-DR-1675
Michael D. Fox,
Appeal from the Huntington
Appellant-Petitioner, Superior Court
v. The Honorable Jeffrey R.
Heffelfinger, Judge
Melissa J. Fox, Trial Court Cause No.
35D01-0807-DR-158
Appellee-Respondent
Baker, Judge.
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[1] Michael Fox (Father) appeals the trial court’s order modifying the child custody
and parenting time arrangement previously in place between Father and
Melissa Fox (Mother) and ordering Father to pay child support and a portion of
Mother’s attorney fees. We find that the child custody modification was
improper because neither party had filed a motion seeking a custody
modification. We also find, however, that the trial court properly modified the
parenting time arrangement and ordered Father to pay child support. Finally,
we find that the attorney fee award had an improper basis and remand so that
the trial court can consider the proper statutory factors and issue a new attorney
fee order if it determines one is warranted. Therefore, we affirm in part, reverse
in part, and remand for further proceedings.
Facts
[2] Father and Mother were married in April 2003. One child, J.F. (Child), was
born of the marriage in March 2005. In July 2008, Father filed a petition to
dissolve the marriage, and on February 27, 2009, the dissolution court approved
the parties’ settlement agreement. Pursuant to their agreement, Father and
Mother shared joint legal and physical custody of Child. Because of the
parents’ work schedules—Father works second shift and Mother (at that time)
worked third shift—they agreed that Father would exercise parenting time at
night while Mother was at work and during the day when she was asleep;
Mother exercised parenting time each weekday afternoon and while Father was
at work. They also agreed to alternate weekends. Neither parent paid child
support.
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[3] In August 2014, Father informed Mother that he planned to move
approximately sixteen miles from his current residence in Huntington to a new
residence in Fort Wayne. Father also informed Mother that, because of the
move, Child would attend a new school in Fort Wayne for the 2015-16 school
year. He handed Mother documentation about the new school; she accepted
the paperwork and did not object to the relocation of residence or change of
school. Between September 2014 and February 2015, Father attempted to
initiate over ten conversations with Mother about the relocation and new
school; she refused to engage, instead walking away from his attempts at
communication.
[4] On February 20, 2015, Father filed a notice of intent to relocate (the Notice).
The Notice stated that Father was a relocating individual; that he had joint
custody of Child; that he was moving his residence to Fort Wayne to obtain a
new residence; and that the move would not have an impact on either parent’s
parenting time. The Notice informed Mother that, pursuant to relevant
statutes, she had sixty days to object to the relocation and/or file a petition to
modify custody, parenting time, and/or child support. Mother did not object or
file any pleadings with the trial court within sixty days of the Notice.
[5] On June 12, 2015, Father moved to his new residence in Fort Wayne and
enrolled Child at the new elementary school. On July 28, 2015, Mother
received all available back-to-school information from the new school; she
offered to purchase several items from the school supplies list.
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[6] On August 9, 2015, three days before the beginning of the school year, Father
received a letter from Mother’s attorney objecting to the enrollment of Child at
the Fort Wayne school. On August 10, 2015, Mother filed a petition to modify
parenting time. In the petition, Mother claimed that the Notice did not
specifically state that Father intended to move Child’s residence or to change
her school enrollment. Mother also argued that it was in Child’s best interests
to remain enrolled in the same school in Huntington that she had always
attended. Furthermore, Mother argued that following Father’s relocation, their
former parenting time schedule was no longer workable.
[7] Out of respect for the judicial process, Father agreed to continue to send Child
to her former elementary school until the litigation was concluded. The hearing
on Mother’s motion was continued. Father hoped to enroll Child in the Fort
Wayne elementary school for the second semester of the school year, so on
December 11, 2015, he filed a motion for selection of school, asking the trial
court to rule on or at least schedule a hearing on the issue before the start of the
second semester. The trial court declined, and Child attended the Huntington
school for the remainder of the school year.
[8] On March 15, 2016, a hearing was held on Mother’s petition to modify
parenting time and Father’s motion for selection of school. At the beginning of
the hearing, the trial court indicated its intention to treat the motion for
modification of parenting time as a motion to modify custody. Attorneys for
both Father and Mother stated that there was no request to modify custody
before the trial court and that counsel had prepared for a modification of
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parenting time hearing rather than for a modification of custody hearing. Tr. p.
2-10. After hearing evidence from both sides on the issues of parenting time
and school selection, the trial court took the matter under advisement. On May
5, 2016, the trial court issued its order. Among other things, it ordered as
follows:
Mother is granted primary physical custody of Child. Father is to have
parenting time pursuant to the Parenting Time Guidelines.
Child will remain in her current school and will not be enrolled in the
new Fort Wayne elementary school.
Father is to pay child support in the amount of $60 per week.
Father is to pay $3,000 to Mother’s attorney within sixty days.
Father now appeals.
Discussion and Decision
[9] At the outset, we note that Mother has not filed an appellee’s brief. We need
not develop an argument on her behalf, and may reverse if Father is able to
establish prima facie error—error on the face of the order being appealed. Evans
v. Thomas, 976 N.E.2d 125, 126 (Ind. Ct. App. 2012).
I. Custody Modification
[10] Father first argues that the trial court erred by modifying the parties’ physical
custody arrangement when neither party had requested the same and neither
party was prepared to litigate modification of custody at the hearing. We agree.
This Court has explicitly held that trial courts may not modify child custody sua
sponte:
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Here, the trial court’s custody modification order suffers from an
even more fundamental defect . . . : namely, neither Father nor
Mother ever requested a change of custody. Longstanding
Indiana law has prohibited trial courts from sua sponte ordering
a change of custody. Rather, when such an important issue as the
custody of children is involved, a modification generally can be ordered
only after a party has filed a petition requesting such a modification, the
other party has notice of the filing, and a proper evidentiary hearing is
held at which both parties may be heard and the trial court fully apprised
of all necessary information regarding change of circumstances and a
child’s best interests before deciding whether a modification should be
ordered. . . .
***
It also is true, pursuant to Indiana Trial Rule 15(B), that issues
raised by the pleadings can be altered by the evidence adduced at
trial where the parties have impliedly or expressly consented to
new issues being tried. Still, a party is entitled to some notice
that an issue is before the court before it will be determined to
have been tried by consent. Both parties must actually litigate
the new issue, and a new issue may not be interjected under the
pretense that the evidence was relevant to some properly pleaded
matter.
Bailey v. Bailey, 7 N.E.3d 340, 344 (Ind. Ct. App. 2014) (internal citations
omitted) (emphasis added). In the case before us, neither party filed a motion
to modify custody, and attorneys for both parties informed the trial court at the
hearing that it was ruling only on a petition to modify parenting time—in other
words, the parties did not expressly or impliedly consent to the issue of custody
modification being litigated. Therefore, the trial court erred by awarding
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primary physical custody of Child to Mother and we reverse with instructions
to modify its order to reflect that the parties still share joint physical custody.
II. Parenting Time Modification
[11] Next, Father argues that the trial court erred by granting Mother’s motion to
modify parenting time because the motion was filed far beyond the sixty-day
statutory timeline governing objections to parental relocations. A “relocating
individual”1 must file a notice of intent to move. Ind. Code § 31-17-2.2-1. The
notice must contain the following information:
The address and home telephone number of the intended new residence;
The date that the relocating individual intends to move;
A brief statement of the specified reasons for the proposed relocation;
A proposal for a revised schedule of parenting time;
A statement that the non-relocating parent must object within sixty days
of receiving the notice; and
A statement that a non-relocating individual may file a petition to modify
custody, parenting time, or child support in response to the relocation.
I.C. § 31-17-2.2-3. Within sixty days of receiving the notice, 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(a). The relocating parent has the
burden of proving the proposed relocation is made in good faith and for a
legitimate reason; if that burden is met, it shifts to the non-relocating parent to
1
A “relocating individual” means an individual who has or is seeking custody of or parenting time with a
child. Ind. Code § 31-9-2-107.5. Father unquestionably qualifies as a relocating individual.
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show that the proposed relocation is not in the child’s best interests. I.C. § 31-
17-2.2-5(c), -5(d). If the non-relocating parent does not file a motion within
sixty days, the relocating individual who has custody of the child may relocate
to the new residence. I.C. § 31-17-2.2-5(e).
[12] Initially, we observe that the trial court found Father’s Notice lacking in two
ways: first, the Notice did not specifically state that Father intended to move
Child’s residence; and second, the Notice did not provide any reason for the
move. As to the first, we think it obvious that a Notice of Intent to Relocate
filed by Father, who shares joint physical and legal custody of Child,
necessarily implies that when Father moves to a new residence, Child will as
well when Father is exercising his parenting time. Moreover, the Notice states
that no modification of parenting time would be necessary, again clearly
implying that Child would be spending the same amount of time with Father
that she always had, and that her time with him would be spent in his new
home.2 To require Father to spell out in his Notice of Intent to Relocate—the
statutory purpose of which is to provide the other parent an opportunity to
respond and object because of the potential effects a parental relocation can
have on the child and the parties’ parenting arrangements—that Child would
live with him at his new home is unnecessary and has no basis in the statute.
We disagree that his notice was deficient in that regard.
2
Additionally, there is no real dispute that Mother had actual knowledge of Father’s plan to move to a new
residence in Fort Wayne and enroll Child in school there for months before he even filed the Notice.
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[13] As to the second alleged deficiency in the Notice, the statute requires that it
contain “[a] brief statement of the specific reasons for the proposed relocation
of the child.” I.C. § 31-17-2.2-3((a)(2)(E). The Notice stated that “[t]he specific
reason that I am moving to the above listed new address is to obtain a new
residence.” Appellant’s App. p. 18. While this is certainly a brief statement, a
brief statement is all that is required by the statute. And this was not a move
across the country, or even across the state—it was a new residence located
merely sixteen miles from his former residence. Under these circumstances, we
find that the reason for Father’s relocation described in the Notice was
statutorily sufficient. As the Notice was sufficient, Mother’s failure to file a
motion seeking a temporary or permanent order preventing Child’s relocation
within sixty days meant that Father was permitted to relocate to his new
residence. I.C. § 31-17-2.2-5(e).
[14] Although Mother is no longer entitled to object to the relocation, she is entitled
to file a motion to modify parenting time at any time. Indiana Code section 31-
17-4-2 provides that a trial court
may modify an order granting or denying parenting time rights
whenever modification would serve the best interests of the child.
However, the court shall not restrict a parent’s parenting time
rights unless the court finds that the parenting time might
endanger the child’s physical health or significantly impair the
child’s emotional development.
With respect to parenting time, the trial court found as follows:
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8. Since the start of the 2015-2016 school year, [Father] has
continued to pick up [Child] at [Mother’s] house at
approximately 11:30 p.m. each school night when he gets
off work from his 2nd shift job. When he arrives, [Child] is
in bed and typically sleeps on her way to [Father’s] house
in Allen County. In the morning, [Father] takes [Child] to
[her Huntington elementary school].
9. The child is 11 years old, preadolescent and requires more
sleep.
10. [Father] works 2nd shift. He has had the opportunity to
change work shifts but has not done so because he is a
sound sleeper, he stated he normally sets 4 or 5 alarm
clocks to wake him in the morning.
11. Since moving to Allen County, [Father], his mother-in-law
and [Child] ride to school each morning. This
arrangement was to help [Father] to stay awake.
12. Each morning for about 20 minutes, [Father], his new wife
and his new mother-in-law help [Child] with homework.
13. . . . In her petition, [Mother] asked the Court to modify
this parenting time arrangement so that [Child] would not
have to go through this each school night. The Court
notes that [Father] intends to continue working on the 2 nd
shift, and has no[] present intention of moving to a
different shift.
***
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17. The current parenting time arrangement is not in the best
interest of [Child]. It deprives the child of much needed
sleep at her age, also disrupts her normal sleeping patterns.
18. The 1 hour [of] parenting time the father has each morning
is not quality time with the child, considering how difficult
it is for [Father] to wake-up and the fact that the parenting
time is shared with the new stepmother and mother-in-
law.
Appellant’s App. p. 27-28. With respect to the two school options, the trial
court found as follows:
15. [Child] is a well-adjusted child and makes A’s & B’s at her
current school. The child has been in the same school
system since preschool and has many friendships that date
back as far as preschool.
16. [Mother] has an excellent relationship with the school
administration and [Child’s] teachers.
***
20. A change in schools is not in [Child’s] best interest,
because considering the parenting time for each parent, the
child would not be able to participate in after school
activities with her classmates [if she attended the Fort
Wayne school].
21. [Child] participates in the Boys & Girls Club [as an after-
school activity following school days at the Huntington
elementary school]. The Boys and Girls Club is a good
environment for [Child].
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Id. at 28.
[15] In other words, the trial court found that, now that Child is older and needs a
good night of sleep every night, it would be detrimental to her physical health
and emotional well-being to continue the family’s practice of interrupting her
nightly sleep at 11:30 p.m. on each school night. The trial court also found that
her best interests would be served by remaining in her current elementary
school. The conclusion that the parenting time modification would be in
Child’s best interests necessarily follows, in that if she is attending school
nearest to Mother’s home, it is in Child’s best interests to sleep at that home on
school nights. We find that the evidence in the record supports these findings,
which in turn support the parenting time modification order and the order that
Child not be enrolled in a new school district near Father’s home.
Consequently, we affirm that portion of the order.
[16] Father does not make any argument regarding the child support order other
than a contention that it is inappropriate because the custody and parenting
time orders were improper. Although we have reversed the custody order, we
are affirming the parenting time modification. Because the parenting time
modification will result in Child spending significantly more time in Mother’s
home than in Father’s, we agree with the trial court that a child support order is
warranted. And as no argument has been made regarding the calculation of the
amount of child support to be paid by Father, we affirm that portion of the trial
court’s order.
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[17] Finally, the trial court’s order contains the following directive regarding
attorney fees:
The Court further finds that [Mother] has incurred attorney fees
in the about [sic] of $4,081.10 in defending against this action
and does not have sufficient means to pay said fees. Further, the
Court finds that [Father] failed to comply with the requirements
of providing notice to move, as stated above; therefore, [Father]
should be ordered to pay [Mother’s] attorney in the amount of
$3,000.00 within 60 days of this order.
Appellant’s App. p. 29. Initially, we note that we have found that the Notice
did, in fact, comply with the relevant statutes. Furthermore, the instant order
stemmed from a hearing on Mother’s petition to modify parenting time and
Father’s motion regarding school selection; as a result, whatever did or did not
happen with respect to the Notice is irrelevant.3 That said, in the context of a
petition to modify parenting time, a trial court may award attorney fees under
certain circumstances:
(a) In any action filed to enforce or modify an order granting
or denying parenting time rights, a court may award:
(1) reasonable attorney’s fees;
(2) court costs; and
(3) other reasonable expenses of litigation.
3
Again, Mother did not file a response to the Notice until months after the sixty-day period to object to the
relocation had passed.
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(b) In determining whether to award reasonable attorney’s
fees, court costs, and other reasonable expenses of
litigation, the court may consider among other factors:
(1) whether the petitioner substantially prevailed and
whether the court found that the respondent
knowingly or intentionally violated an order
granting or denying rights; and
(2) whether the respondent substantially prevailed and
the court found that the action was frivolous or
vexatious.
I.C. § 31-17-4-3. We reverse the trial court’s award of attorney fees, as it did
not have a proper basis, and remand so that the trial court can consider the
statutory factors set forth in Indiana Code section 31-17-4-3 and issue a new
order with respect to attorney fees if the trial court determines that fees are
warranted pursuant to that statute.
[18] The judgment of the trial court is reversed with respect to the custody
modification and attorney fee award, affirmed with respect to the parenting
time modification and child custody order, and remanded with instructions to
consider proper statutory factors and issue a new attorney fee order if the trial
court determines that one is warranted.
Mathias, J., and Pyle, J., concur.
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