Jarrell v. Jarrell

• Decision Date: 31 March 2014
• Docket Number: No. 42A01–1308–DR–381.,42A01–1308–DR–381.
• Citation: 5 N.E.3d 1186
• Parties: Dustin Lee JARRELL, Appellant–Respondent, v. Billie Jo JARRELL, Appellee–Petitioner.
• Court: Indiana Appellate Court

5 N.E.3d 1186

Dustin Lee JARRELL, Appellant–Respondent,

v.Billie Jo JARRELL, Appellee–Petitioner.

No. 42A01–1308–DR–381.

Court of Appeals of Indiana.

March 31, 2014.

Andrea L. Ciobanu, Alex Beeman, Ciobanu Law, P.C., Indianapolis, IN, Attorneys for Appellant.

Jonathan T. Feavel, Vincennes, IN, Attorney for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Respondent, Dustin Lee Jarrell (Father), appeals the trial court's Order modifying the custody of his minor child, G.J., in favor of Appellee–Petitioner, Billie Jo Jarrell (Mother).

We affirm.

ISSUES

Father raises three issues on appeal, which we restate as the following:

(1) Whether the trial court erred by failing to consider the proper statutory factors following Father's objection to Mother's relocation;

(2) Whether the trial court erred by modifying custody without finding a substantial change in circumstances; and

(3) Whether the trial court erred in concluding that it is in G.J.'s best interests to award physical custody to Mother.

FACTS AND PROCEDURAL HISTORY¹

On September 6, 2003, Father and Mother were married and established their home in Vincennes, Indiana. Father owns a motorsport retail and repair business, and Mother is a registered nurse. Father has two children and Mother has one child from previous relationships, and on January 7, 2008, Mother gave birth to G.J., the couple's only child together. For the first two years of G.J.'s life, Father was a stay-at-home dad. After almost seven years of marriage, on August 20, 2010, Mother filed a petition to dissolve the marriage. On January 4, 2011, the trial court entered a Decree of Dissolution and adopted the Dissolution Settlement Agreement reached by Father and Mother, which included an arrangement to share joint physical and legal custody of G.J. Per the custody order, Father and Mother alternated physical custody of G.J. on a weekly basis. Because the parents agreed to pay all costs associated with G.J.'s care while in that parent's custody and equally share educational and extra-curricular expenses, no child support order was entered.

In May of 2011, Mother quit her nursing job in Vincennes and relocated to Carterville, Illinois to reside with her fiance (Fiance). Carterville is approximately 180 miles and a three-hour drive from Vincennes. On December 28, 2011, Mother began a new nursing job in Carterville. For nearly two years following Mother's relocation, Father and Mother maintained their alternating custody arrangement, meeting in a city halfway between Vincennes and Carterville to exchange G.J. each week.

On March 18, 2013, Father filed a petition with the trial court requesting modification of the custody order. In his petition, Father stated that G.J. was set to begin kindergarten in August of 2013, and the weekly custody arrangement would “be impossible to perform because of the change of residency” by Mother. (Appellant's App. p. 48). Noting that Mother had failed to provide statutorily required notice prior to moving to Carterville, Father asserted that Mother's relocation “is a substantial and continuing change of circumstances that causes the [trial] [c]ourt's Orders as to the custody, visitation/parenting time and support to be unreasonable and therefore in need of modification.” (Appellant's App. pp. 47–48).

On July 31, 2013, the trial court held an evidentiary hearing on Father's modification petition. On this same day, the trial court conducted an in-camera interview of G.J., off the record and outside the presence of parties or counsel. On August 15, 2013, the trial court adopted Mother's Proposed Findings of Fact and Conclusions of Law as its final judgment, maintaining the initial decree of joint legal custody, but granting sole physical custody to Mother. Father was awarded parenting time from 8:00 P.M. Friday through 6:00 P.M. Sunday for the first three weekends of each month, as well as nearly the entirety of G.J.'s summer break. The trial court concluded:

That after consideration of the testimony of the parties, the information provided to this [c]ourt by the child in the [i]n-[c]amera interview, the exhibits provided to this [c]ourt, and the necessary statutory factors, the [c]ourt determines that the best interests of the child are served most completely through an award of physical custody to [Mother]. The [c]ourt specifically notes that the best interests of the child are served most fully through this award of physical custody as the child will benefit educationally from attentiveness of [Mother] as has been shown to the [c]ourt through testimony and exhibits.

(Appellant's App. p. 73).

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

DISCUSSION AND DECISION

I. Standard of Review

In this case, the trial court entered specific Findings of Fact and Conclusions of Law in its Order modifying custody. Pursuant to Indiana Trial Rule 52(A), our court will “not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.” D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind.2012). Considering only the evidence most favorable to the trial court's judgment and all reasonable inferences derived therefrom, we will find clear error only if the evidence, either directly or by inference, fails to support the findings, or if the findings fail to support the conclusions. Paternity of X.A.S. v. S.K., 928 N.E.2d 222, 224 (Ind.Ct.App.2010), trans. denied.

In addition, there is a well-established preference in Indiana “for 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., 977 N.E.2d at 956–57 (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)). Our State's courts have long emphasized a concern that there be finality in matters concerning child custody. Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind.2008). “Modification of custody is an area committed to the sound discretion of the trial court, and we are constrained to neither reweigh evidence nor judge the credibility of witnesses.” Joe v. Lebow, 670 N.E.2d 9, 23 (Ind.Ct.App.1996).

II. Relocation and Custody Statutes

A. Relocation Factors Versus Best Interests Factors

Father claims that the trial court erred by failing to evaluate the proper statutory factors for modifying a custody order. Indiana Code chapter 31–17–2.2 (the Relocation Statute) provides that when a party moves to modify custody in response to the proposed relocation of the other parent, the trial court must take these factors (the Relocation Factors) into consideration:

(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, 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.

Ind.Code § 31–17–2.2–1(b). A trial court may “award reasonable attorney's fees for a motion filed” pursuant to the Relocation Statute. I.C. § 31–17–2.2–1(c).

In its Conclusions of Law, the trial court stated that it considered the Relocation Factors in ordering Mother to pay half of Father's attorney's fees. Specifically, the trial court mentioned Mother's failure to file proper notice of her proposed relocation and concluded that “it was [Mother's] move from Vincennes ... that put the ball in motion for [the] hearing at hand.” (Appellant's App. p. 11). However, in awarding sole physical custody of G.J. to Mother, the trial court stated “[t]hat contested matters of child custody are governed by the provisions of [Indiana Code section 31–17–2–8].” (Appellant's App. p. 13). Under this provision, a trial court must make a determination of custody based on the best interests of the child, which entails a consideration of “all relevant factors” (the Best Interests Factors), including:

(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;

(B) the child's sibling; and

(C) any other person who may significantly affect the child's best interests.

(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.

(7) Evidence of a pattern of domestic or family violence by either parent.

(8) Evidence that the child has been cared for by a de facto custodian....

I.C. § 31–17–2–8. Here, the trial court concluded that the child's best interests “are served most completely through an award of physical custody to [Mother].” (Appellant's App. p. 14). Father now argues that the trial court abused its discretion in modifying the custody order because it did so based solely on an assessment of the Best Interest Factors, without any consideration of the Relocation Factors.

Both Father and Mother rely on ...