Hoos v. Hoos

• Decision Date: 19 November 1990
• Docket Number: No. 46A03-8910-CV-421,46A03-8910-CV-421
• Citation: 562 N.E.2d 1292
• Parties: Theresa HOOS, Respondent-Appellant, v. Benjamin F. HOOS, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 1292

562 N.E.2d 1292

Theresa HOOS, Respondent-Appellant, v. Benjamin F. HOOS, Petitioner-Appellee.

No. 46A03-8910-CV-421.

Court of Appeals of Indiana,

Third District.

Nov. 19, 1990.

W. Jonathan Forker, LaPorte, for respondent-appellant.

Arthur L. Roule, Jr., LaPorte, for petitioner-appellee.

GARRARD, Judge.

The parties to this action had their marriage dissolved in 1984. Custody of their daughter was awarded to the mother and the father was granted generous visitation rights.

In 1988 the mother remarried. On May 10, 1989 she filed with the court her notice of intent to change residence to Garden Grove, California, as dictated by IC 31-1-11.5-21.1, and had the matter set for hearing for May 25th. The father appeared and petitioned to have custody of the parties' daughter. Hearing was held on May 25, 1989 and the court subsequently entered its written findings determining that the mother's petition to relocate her permanent residence should be denied, the father's petition for change in custody should be denied and the existing custody order should be modified to provide that the mother's custodial rights be continued subject to the condition that she reside within 100 miles of LaPorte County, absent a further order of the court. Judgment was entered on the findings and the mother appeals. She contends the court committed an abuse of discretion in refusing her petition and entering its order.

Pursuant to IC 31-1-11.5-21.1, if an individual who has been awarded custody in a dissolution action intends to move to a residence (other than one specified in the existing custody order) that is outside Indiana or 100 miles or more from the individual's present county of residence, that individual must file notice to that effect as provided in the statute. Then upon the request of either party, the court shall set the matter for hearing "for the purposes of reviewing and modifying[,] if appropriate[,] the existing custody, visitation and support orders."

In considering that provision, this court has determined that it does not technically impose upon the party giving notice of a desire to move, the obligation of establishing a change in circumstances so substantial as to render the existing custody order unreasonable as provided in IC 31-1-11.5-22(d). Lubeznik v. Liddy (1985), Ind.App., 477 N.E.2d 947, 952. That is true in large part because the party giving notice is not seeking a change in custody; he or she is seeking to maintain custody in a different location. At the same time, mere inconvenience to the child and non-custodial parent resulting from a change of residence will not constitute a basis for changing custody to the other parent. Pea v. Pea (1986), Ind.App., 498 N.E.2d 110.

As our supreme court held in Poret v. Martin (1982), Ind., 434 N.E.2d 885, 890:

[A] custodial parent's move out of state is not per se a substantial change in circumstances such as to make the parent's continued custody unreasonable.... Whether or not any given change is substantial must be determined in the context of the surrounding circumstances.

Furthermore, it is well settled that the trial court is afforded substantial discretion in determining child custody matters and its decision is reviewable only for an abuse of discretion. Poret, supra, 434 N.E.2d at 887.

In turning to the circumstances of this appeal we are compelled to recognize that it presents one of the critical social dilemmas of our time. The mobility of our society, the requirements of employment and the frequency of divorce and remarriage confront us with a reality that forbids easy answer. It is nevertheless a problem that devolves upon our trial courts for decision, if not solution. For these very reasons it is imperative that courts carefully weigh and consider the competing factors in each case. It provides immeasurable assistance to a reviewing court when the court then sets forth those considerations in reaching its decision.

Commissioner King did so in this case in a thoughtfully drafted memorandum which was expressly incorporated into the findings. Those considerations, which are supported by the evidence, may be summarized as follows:

The daughter is a normal well-adjusted nine year old and both parents have played a positive role in her upbringing.

Both the mother and her husband were employed in LaPorte at the time the husband accepted employment in California. While the present husband provided a history of continuous employment, it was unstable in nature. He had held four different employments since 1984. No evidence was introduced as to his earnings in LaPorte before accepting the California job or of his earnings there, although it appeared that he was employed as manager of the company's plant in Orange County, California. No evidence was introduced of the mother's earnings in LaPorte. While her husband's employer had indicated it would help her seek employment in California, at the time of the hearing she had no prospective employment there.

In addition to the obvious visitation obstacle for the father and daughter posed by such a move, no relatives of the mother or the child reside in California. On the other hand, many relatives of both the mother and father reside in the LaPorte area, including his parents, two brothers, three sisters, his aunts and uncles and the mother's grandmother and aunts and uncles. The child enjoyed a particularly strong relationship with her paternal grandmother and two paternal aunts.

The commissioner concluded that the relocation would substantially impact the stability of the daughter's life by uprooting her from her home, community, school, friends and relatives. It would substantially interfere with the child's strong and affectionate relationship with her father and grandmother, and this would be exacerbated by the lack of any relatives in California.

The commissioner further concluded that there was no evidence to establish that the relocation was motivated by financial reasons, family concerns, health matters or social concerns. Moreover, the commissioner expressed concern that the husband's history of employment instability suggested that the upheaval in the daughter's life occasioned by the proposed move might only be compounded by subsequent events.

Thus, there were findings sustained by the evidence that the proposed move to a residence approximately two thousand miles away would have a substantial adverse impact on the child's relationships, not only with her father, but with other close relatives on both the father's and mother's sides of the family. On the other hand, the evidence supporting the desire to move failed to establish any substantial motivation over and above the husband's personal desire to accept the proffered employment and the mother's desire to accompany him. Compare Lubeznik, supra, where the evidence supported a determination that the mother and her husband were making "a carefully considered move for financial and other reasons." 477 N.E.2d at 952.

We conclude that the court's refusal to grant the mother's petition is not clearly against the logic and circumstances before the court. Poret, supra. Accordingly, there was no abuse of discretion.

Finally, we note that the court did modify the prior custody order to provide that the mother's continued custody be subject to the condition that she reside within 100 miles of LaPorte County, absent further order of the court.

The mother suffered no prejudice from this modification since it actually gives her more latitude than IC 31-1-11.5-21.1, which requires notice and opportunity for hearing if a custodial parent desires to move either outside of Indiana or more than a hundred miles away from the existing county of residence.

We find no error.

Affirmed.

HOFFMAN, P.J., concurs.

SHIELDS, P.J., dissents and files separate opinion.

SHIELDS, Presiding Judge, dissenting.

I dissent. The trial court's judgment modifying the prior custody order is contrary to law because it contravenes IC 31-1-11.5-21.1 (1988) and because there is no evidence "there has been such a substantial and continuing change of circumstances that the existing custody order has been rendered unreasonable." Record at 11.

The trial court's judgment, in relevant part, reads:

2. Wife's petition to relocate her permanent residence to Garden Grove, California, as custodial parent should be denied ...

3. It has been established that there has been such a substantial and continuing change of circumstances that the existing custody order has been rendered unreasonable ...

4. The existing custody order should be modified to provide that wife's custodial rights be subject to the condition that she reside within 100 miles of LaPorte County, absent further order of this court ...

5. Husband's application for sole legal and physical custody should be denied in light of the status quo contemplated in these findings....

Record at 11-12.

The trial court, on its own motion, made findings of fact. Restated, these findings are:

1. Visitation between Daughter and Father has gone very well and the relationship between Daughter and Father is close; Father is an excellent father and he and Daughter are "the best of friends" and "love each other." Record at 15.

2. Mother remarried Husband on July 2, 1988; Mother and Husband continued to reside at the parties former marital residence until approximately May 1, 1989 when Husband relocated his residence to California to accept employment as a plant manager for the Great Western Carpet and Cushion Company. Prior to accepting the position in California, Husband was employed at Modine, in LaPorte, for approximately a year, a portion of which was prior to Mother and Husband's marriage. Before his employment at Modine, Husband's employment was of a "continuous but unstable nature, including a two to three year stint with Recticel Foam from 1984 to 1986 in LaPorte, followed by a one-month stint with Charles Levy,...