In Re The Paternity Of X.A.S.

• Court: Indiana Appellate Court
• Writing for the Court: BAKER
• Citation: H.S. v. S.K., 928 N.E.2d 222 (Ind. App. 2010)
• Decision Date: 16 September 2010
• Docket Number: No. 49A02-0910-JV-1023.,49A02-0910-JV-1023.
• Parties: In re The PATERNITY OF X.A.S., H.S., Appellant-Petitioner,v.S.K., Appellee-Respondent.

928 N.E.2d 222

In re The PATERNITY OF X.A.S., H.S., Appellant-Petitioner,v.S.K., Appellee-Respondent.

No. 49A02-0910-JV-1023.

Court of Appeals of Indiana.

June 4, 2010.

Transfer Denied Sept. 16, 2010.

Anita Wylie, Indianapolis, IN, Attorney for Appellant.

Kimberly J. Bacon, Indianapolis, IN, Attorney for Appellee.

OPINION

BAKER, Chief Judge.

Father and Mother both love their son and have been responsible, dedicated, involved parents. Father met someone who is in the Navy, got married, and has decided to move with his new wife to California, where her ship will be docked. Father, who has been the custodial parent of and primary caregiver for his son with Mother for the past nine years, asked the trial court to permit the child to relocate with Father to California. The trial court denied the request and granted Mother's request to modify custody so that the child could remain in Indiana. We acknowledge that this situation will undeniably cause heartbreak for one of these parents, who will have to drastically curtail the amount of time spent with their son. Inasmuch as someone must prevail, however, we find that while it is a close call, the record simply does not contain sufficient evidence to support a change from the status quo. Thus, we find that the boy should remain with his father.

Appellant-petitioner H.S. (Father) appeals the trial court's order denying his request to relocate to California with X.A.S., Father's child with S.K. (Mother), and granting Mother's petition to modify the parties' custody arrangement. Finding that a number of findings are not supported by the evidence, that a number of inferences drawn from the facts are unreasonable, and that the judgment is not supported by the remaining findings, we reverse and remand with instructions.

FACTS

X.A.S. was born on September 14, 1997. On October 12, 1999, Father filed a petition to establish paternity of X.A.S., and on January 11, 2000, the trial court granted the petition and also granted Father custody of X.A.S. subject to visitation with Mother pursuant to the Parenting Time Guidelines (the Guidelines). For the next nine years, X.A.S. lived with Father at the same address in Marion County and visited with Mother according to the Guidelines. The relationship between Mother and Father was cordial during those years. Both Mother and Father were steadily employed until Father was recently laid off from his electrician's job as a result of the economic downturn.

Both parents have been involved in X.A.S.'s life-Mother was a room mother in his classrooms, attended parent/teacher conferences, knew his teachers, and attended his athletic games. Father helped X.A.S. with his homework at night and also attended X.A.S.'s athletic games. X.A.S. has extended family in Indianapolis on both sides of his family and has at least one good friend.

On August 9, 2008, Father married J.S. (Stepmother), who is a member of the United States Navy. The ship to which Stepmother is assigned was under construction for a period of time until the fall of 2009, when the Navy launched the ship and sailed it to its home port of San Diego.

Shortly before Father and Stepmother were married, Father filed a notice of intent to relocate, requesting that X.A.S. be permitted to relocate to California with Father and Stepmother. Mother objected and filed a petition to modify custody. On December 10, 2008, Father requested a Domestic Relations Counseling Bureau (DRCB) investigation, which the trial court granted. The DRCB filed its report with the trial court on May 1, 2009, recommending that X.A.S. be permitted to relocate to California with Father.

The trial court held a hearing on the parties' motions on August 12, 2009. The trial court denied Father's request to conduct an in camera interview of X.A.S.:

[X.A.S.] is such a young age, what [X.A.S.] is going to tell me is he wants his parents to both live in the same city. I can guarantee that. He's going to say, given the choice, he'd rather live with his dad. I get that.

* * *

I'm not particularly interested in his wishes, even. He may tell me he wants to move to California with his dad. He may think that's what he wants; it's not what's best for him. What's best for him is to have two parents in the same city.

Tr. p. 129-30. Following the hearing, the trial court denied Father's petition to permit X.A.S. to relocate with him to California and granted Mother's petition to modify custody:

I haven't heard yet today how it's best for [X.A.S.] to move. I've heard all about how it's great for dad. I have a hard time understanding folks who choose romantic partners over their children, but it's your choice to make, sir. If you remain here, [X.A.S.] remains here with you. If you leave, custody transfers to mom.

... I understood dad's testimony today as dad is moving regardless. I find that kind of disturbing. I don't understand folks who can move clear across the country from their kids. But I've never done it, never been faced with that choice, so it's hard for me to judge dad's rationale, but that's in no way good for [X.A.S.].

Id. at 128-29. The trial court entered a summary written order to that effect on August 31, 2009.

On August 24, 2009, Father filed a motion to correct error and to reconsider. On September 25, 2009, the trial court entered an order that entered specific findings to support its original decision. Father now appeals.

DISCUSSION AND DECISION

I. Standard of Review

The trial court made specific findings of fact and conclusions thereon in denying Father's motion and granting Mother's motion. Accordingly, we must first determine whether the evidence supports the findings and second, whether the findings support the judgment. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.2009). In reviewing the order being appealed, we will neither reweigh the evidence nor assess witness credibility, instead considering only the evidence that supports the trial court's judgment together with all reasonable inferences to be drawn therefrom. In re M.B. and P.B., 666 N.E.2d 73, 76 (Ind.Ct.App.1996).

We will set aside the judgment only if the findings or judgment are clearly erroneous. Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind.Ct.App.2001). A finding is clearly erroneous when there are no facts or inferences to be drawn therefrom that support it. M.B., 666 N.E.2d at 76. A judgment is clearly erroneous when it is unsupported by the findings and conclusions entered thereon. In re Adoption of H.N.P.G., 878 N.E.2d 900, 904 (Ind.Ct.App.2008) trans. denied, cert. denied.

II. Relocation and Modification Statutes

Indiana Code section 31-17-2.2-1 (the Relocation Statute) governs a parent's desire to relocate. Upon motion of either parent, the trial court must hold a hearing to review and modify custody “if appropriate.” I.C. § 31-17-2.2-1(b). The Relocation Statute provides that when determining whether to modify a custody order or parenting time order in the context of a parent's relocation, the trial court shall take the following factors into account:

(1) The distance involved in the proposed change of residence.

(2) The hardship and expense involved for the nonrelocating individual to exercise parenting time....

(3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time ..., including consideration of the financial circumstances of the parties.

(4) Whether there is an established pattern of conduct by the relocating individual^[1], including actions by the relocating individual to either promote or thwart a nonrelocating individual's contact with the child.

(5) The reasons provided by the:

(A) relocating individual for seeking relocation; and

(B) nonrelocating parent for opposing the relocation of the child.

(6) Other factors affecting the best interest of the child.

Id.

Our Supreme Court has explained that in addition to those factors contained in the Relocation Statute, the trial court must also consider other factors identified in Indiana Code section 31-17-2-8 (Section 8) as relevant to every change of custody. Baxendale v. Raich, 878 N.E.2d 1252, 1256 (Ind.2008). Section 8 requires that the trial court enter a custody order in accordance with the best interests of the child, considering all relevant factors, including the following:

(1) The age and sex of the child.

(2) The wishes of the child's parent or parents.

(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child's parent or parents....

* * *

(5) The child's adjustment to the child's:

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals involved....

Indiana Code section 31-17-2-21 (the Modification Statute) provides that a trial court may not modify a child custody order unless modification is in the child's best interests and there is a substantial change in one or more of the Section 8 factors.

Our Supreme Court has explained, however, that the Relocation Statute does not necessarily require a substantial change in one of the original Section 8 factors for custody modification to be warranted. Baxendale, 878 N.E.2d at 1257. Therefore, we will focus on the factors set forth in the Relocation Statute, keeping in mind that our Supreme Court has cautioned that the Relocation Statute incorporates all of the Section 8 factors as well. Id.

III. Father's Relocation Request

Father argues that the trial court erred by denying his request to relocate with X.A.S. and granting Mother's petition to modify the parties' custody arrangement. Specifically, he argues that many of the trial court's findings do not have evidentiary support in the record and that the ultimate judgment is clearly erroneous. Turning to the trial court's order, we will analyze it in the context of the factors set forth in the Relocation Statute and Section 8.

The...