Gilbert v. Gilbert

• Court: Indiana Appellate Court
• Writing for the Court: RILEY
• Citation: Gilbert v. Gilbert, 7 N.E.3d 316 (Ind. App. 2014)
• Decision Date: 17 April 2014
• Docket Number: No. 57A03–1308–DR–312.,57A03–1308–DR–312.
• Parties: Geoffrey A. GILBERT, Appellant–Respondent, v. Melinda J. GILBERT, Appellee–Petitioner.

7 N.E.3d 316

Geoffrey A. GILBERT, Appellant–Respondent,

v.Melinda J. GILBERT, Appellee–Petitioner.

No. 57A03–1308–DR–312.

Court of Appeals of Indiana.

April 17, 2014.

Bill D. Eberhard, Eberhard & Weimer, P.C., LaGrange, IN, Attorneys for Appellant.

Lindsey A. Grossnickle, Bloom Gates & Whiteleather, LLP, Columbia City, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Respondent, Geoffrey A. Gilbert (Father), appeals the trial court's Order approving the relocation request of Appellee–Petitioner, Melinda J. Gilbert (Mother).¹

We affirm.

ISSUES

Father raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court abused its discretion by granting Mother's petition to relocate from Albion, Indiana to Goshen, Indiana.

Mother raises one issue on cross-appeal, which we restate as the following: Whether Mother is entitled to an award of appellate attorney's fees because Father filed a frivolous or bad faith appeal.

FACTS AND PROCEDURAL HISTORY

On September 8, 2001, Father and Mother were married and they established their home in Albion, in Noble County. In the course of their nearly eleven-year marriage, Father and Mother had two children (the Children)—a son born in February of 2004, and a daughter born in January of 2007. Father also has two teenage children from a previous marriage. Father works in Goshen for a company that constructs mobile homes. Since January of 2012, Mother, who works from home, has been employed by a company headquartered in Grand Rapids, Michigan that sells food service equipment.

In the spring of 2012, Father and Mother decided to separate, and Father moved out of the marital residence. Four months later, on August 23, 2012, the trial court entered a Decree of Dissolution, which incorporated the Mediated Marital Settlement Agreement reached by Father and Mother. Pursuant to the Settlement Agreement, Father and Mother “agreed that it is in the best interests of [the Children]” for the parents to share joint legal custody and for Mother to have primary physical custody. (Appellant's App. p. 9). Father agreed to exercise his parenting time with the Children from Friday through Tuesday on alternating weekends, as well as overnight on alternating Mondays. During the Children's summer scholastic breaks, Father and Mother alternate physical custody on a weekly basis. The Settlement Agreement also provides that Father and Mother may arrange for Father to have parenting time with the Children “[a]t other reasonable times and places.” (Appellant's App. p. 9). The trial court did not issue an order for child support.

Both parents are actively involved in the Children's education; they volunteer at school events and chaperone their field trips. The Children participate in a number of different sports and other extracurricular activities. Father coaches their son's baseball, football, and basketball teams, as well as their daughter's t-ball team. For several months after the divorce, Father lived only a few miles from Mother's house, so on the mornings following the Children's overnight stays, Father drove the Children to Mother's house where they would board the school bus.

In the fall of 2012, Mother's then-boyfriend (Fiance) moved to Albion to reside with Mother and the Children. Fiance has a child from a previous marriage who lives in Grand Rapids and spends three weekends each month with Fiance. By the beginning of 2013, Mother and Fiance, who were expecting a baby in the spring, realized they needed more space to accommodatetheir family and began searching for a new home. Finding no suitable houses in Albion, Mother selected a newly constructed, five bedroom house in Goshen approximately thirty miles away. Mother entered into an agreement to sell her Albion residence and into another to purchase the home in Goshen, with both deals contingent upon the trial court's approval of the move.

On April 3, 2013, Mother filed notice with the trial court, communicating her intent to relocate from Albion to Goshen. On May 2, 2013, Father filed an objection to Mother's relocation and concurrently filed his Verified Motion for Modification of Custody, Parenting Time, and Child Support, requesting that the trial court award him physical custody. On May 10, 2013, Father filed a motion for the trial court to appoint a guardian ad litem. Concerned that the appointment of a guardian ad litem would unnecessarily delay the hearing, Mother objected, and on May 13, 2013, the trial court denied Father's request. On June 7, 2013, the trial court conducted an evidentiary hearing on the matters of Mother's request to relocate and Father's motion to modify custody. On June 10, 2013, Father filed a motion for the trial court to conduct an in camera interview with their son, who was nine years old at the time. That same day, following Mother's objection based on Father's failure to request the interview prior to the close of the evidence, the trial court denied Father's motion.

The next day, June 11, 2013, the trial court issued its Order approving Mother's proposed relocation and denying Father's motion to modify custody. Specifically, the trial court found that “[Mother] has met her burden of proof that her proposed relocation is made in good faith and for a legitimate reason and [Father] has not met his succeeding burden to show that the proposed relocation is not in the best interest of the parties' [C]hildren.” (Appellant's App. p. 5). The trial court affirmed its previous orders concerning the custody, support, and parenting time arrangements with the “hope [ ] that the parties will be able [to] continue to co-parent and cooperate with each other as they have to date.” (Appellant's App. p. 5). On July 11, 2013, Father filed a motion to correct error, contending that the trial court erred in finding that Mother established a legitimate good faith reason for her relocation, which the trial court denied the same day.

Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

APPEAL

I. Standard of Review

In this case, the parties did not request, and the trial court did not issue, specific findings of fact or conclusions of law. Accordingly, we review this case under a general judgment standard. L.C. v. T.M., 996 N.E.2d 403, 407 (Ind.Ct.App.2013). Relying on this standard, we will affirm the trial court if its judgment “can be sustained on any legal theory consistent with the evidence.” Id.

The Indiana Supreme Court has articulated an unequivocal policy of “granting latitude and deference to our trial judges in family law matters.” Swadner v. Swadner, 897 N.E.2d 966, 971 (Ind.Ct.App.2008) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind.1993)). “[A]ppellate courts ‘are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.’ ” D.C. v. J.A.C., 977 N.E.2d 951, 956–57 (Ind.2012) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)). It is well-established that there should be finality in matters concerning the custody of a child. Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind.2008). Accordingly, on review, “we ‘will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment.’ ” T.L. v. J.L., 950 N.E.2d 779, 784 (Ind.Ct.App.2011) (quoting Baxendale, 878 N.E.2d at 1257–58),reh'g denied.

II. Relocation

Father claims that the trial court abused its discretion in granting Mother's request to relocate thirty miles from Albion to Goshen. When a parent whose child is the subject of a custody or parenting time order seeks to relocate, he or she must provide notice to both the trial court and the non-relocating parent of his or her intent to move. Ind.Code §§ 31–17–2.2–1(a); –3(a)(1). Indiana's Relocation Statute mandates that this notice must provide the non-relocating parent with the relocating parent's new address and phone number, the intended move date, “the specific reasons for the relocation of the child[,]” a proposed revised parenting time schedule, and information about the non-relocating parent's ability to object. I.C. § 31–17–2.2–3(a)(2).

If, within sixty days of receiving notice, the non-relocating parent fails to object, the relocating custodial parent is permitted to relocate with the child. I.C. § 31–17–2.2–5(a). However, if the non-relocating parent files a motion to prevent the child's relocation, the trial court must apply a two-prong test to decide the permissibility of the relocation. First, the relocating parent must prove “that the proposed relocation is made in good faith and for a legitimate reason.” I.C. § 31–17–2.2–5(c). Second, once a good faith basis and a legitimate reason for the relocation have been established, the burden of proof shifts to the non-relocating parent to demonstrate “that the proposed relocation is not in the best interest of the child.” I.C. § 31–17–2.2–5(d).

A. Good Faith and Legitimate Reason

Father first asserts that Mother failed to satisfy her burden of proof that the proposed relocation is in good faith and for a legitimate purpose. The Relocation Statute “requires that a legitimate reason be objectively shown [ ] and[,] by requiring that the relocation be in good faith, demands that the objective reason be more than a mere pretext.” T.L., 950 N.E.2d at 787. In general, our court has found that employment opportunities, financial considerations, and proximity to family are legitimate reasons to justify a relocation. See id. at 787–88. Father contends that, by citing no “economic or familial benefit,” Mother's proposed relocation is not grounded in a legitimate purpose. (Appellant's Br. p. 13). While economic and familial considerations are valid bases for relocating, the...