McDaniel v. McDaniel

• Court: Indiana Appellate Court
• Writing for the Court: Crone, Judge.
• Citation: McDaniel v. McDaniel, 150 N.E.3d 282 (Ind. App. 2020)
• Decision Date: 14 July 2020
• Docket Number: Court of Appeals Case No. 19A-DR-2983
• Parties: Annette MCDANIEL, Appellant-Petitioner, v. Joe MCDANIEL, Appellee-Respondent

150 N.E.3d 282

Annette MCDANIEL, Appellant-Petitioner,

v.Joe MCDANIEL, Appellee-Respondent

Court of Appeals Case No. 19A-DR-2983

Court of Appeals of Indiana.

Filed July 14, 2020

Attorneys for Appellant: Bryan L. Ciyou, Alexander N. Moseley, Ciyou and Dixon, P.C., Indianapolis, Indiana

Attorney for Appellee: Leanna Weissmann, Lawrenceburg, Indiana

Crone, Judge.

Case Summary

[1] Annette McDaniel (Mother) appeals the trial court's order modifying the physical and legal custody of her minor child, C.M., whom she shares with her former husband, Joe McDaniel (Father). She asserts that the trial court abused its discretion in denying her request to relocate sought prior to the modification, and that the modification order is clearly erroneous and an abuse of discretion. We decline to address the relocation issue on grounds of mootness. Finding neither clear error nor an abuse of discretion in the trial court's modification order, we affirm.

Facts and Procedural History

[2] Mother and Father dissolved their marriage in April 2013. One child, C.M., was born of the marriage in May 2008. At the time of dissolution, Mother was granted primary physical custody of C.M., and the parties shared joint legal custody. In April 2018, Mother filed a notice of intent to relocate. On May 7, 2018, Father filed his objection to relocation and a request for evidentiary hearing. The trial court held an evidentiary hearing on June 14, 2018. During the hearing, Mother stated that she had already sold her Dearborn County residence and moved to Richmond. Father's counsel emphasized that Father lives in northern Kentucky, and that the move would increase Father's travel time to see C.M. by more than one and one-half hours. Although Father had not filed a written petition to modify custody or sought an injunction against Mother, Father's counsel orally presented these options to the trial court. The trial court took the relocation matter under advisement pending a report from a court-appointed guardian ad litem (GAL).

[3] In the interim, Mother filed multiple pro se motions for contempt against Father. Following a hearing on those motions, the trial court found the motions unsubstantiated and declined to find Father in contempt. The court did note that the parties had difficulties with communication. The trial court advised the parties that the GAL report was complete and scheduled a hearing on the relocation issue.

[4] Following several continuances, the trial court held a hearing regarding Mother's relocation request in November 2018, and issued an order denying that request on December 21, 2018. Among other things, the court concluded that Mother in fact moved with C.M. shortly after filing the notice of intent to relocate, and that the move was planned prior to filing the notice. The court found that Mother's move significantly impacted Father's travel time and his ability to be involved with C.M.'s activities. The court found that Mother's move changed C.M.'s school without giving Father any input into the decision despite the court's order of joint legal custody. The court also noted that Mother had filed unsubstantiated motions for contempt against Father and that she had failed to accommodate Father's parenting time and relationship with C.M. In sum, the court concluded that the request to relocate and the actual relocation were not in C.M.'s best interests, and therefore the court denied Mother's request to relocate. Acknowledging that Mother had already sold her house and moved out of C.M.'s previous school district, the trial court encouraged the parties to reach an agreement on this issue and, if not, the court would set the matter for a hearing upon motion.

[5] Mother filed a motion to correct error on January 16, 2019. The trial court scheduled a hearing for February, which was later continued to May 2019. Prior to that hearing being held, Father filed a petition for modification of child custody, visitation, and support. Accordingly, the trial court set a combined hearing for Mother's motion to correct error and Father's petition to modify for September 9, 2019. Following that hearing, the trial court issued its findings of fact, conclusions thereon, and order denying Mother's motion to correct error on the relocation issue and granting Father's petition to modify custody. Regarding custody modification specifically, the trial court found in relevant part that, since the "prior determination of custody and order for joint legal custody with primary physical custody to Mother there has been a significant change in circumstances" including,

a) Mother re-locating to a location that adds an additional one and one-half hours of travel time for Father which creates an extreme difficulty in Father and Father's family being involved in extracurricular activities. The Court recognizes the relocation of a parent alone, will not support a modification of custody; rather, it is the effect of the move upon the child that renders it substantial or inconsequential – i.e., against or in line with the child's best interests. Prior to Mother's relocation, child lived in Dearborn County which was a little over half hour in distance from Father's home in [n]orthern Kentucky and in close proximity to Father's family members who had close relationship with [C.M]. Other than Mother, [C.M.] has no family members in Richmond area,

b) actions of Mother in unilateral decision to purchase new property which required [C.M.] to change school systems, and relocate a greater distance away than Mother had ever previously discussed with Father despite joint custody, Mother had commuted to new employment for over a year and one-half and move closer is rational, but no discussion as to impact of move with Father is not,

c) a pattern of inflexibility and failure by Mother to communicate with Father prior to enrolling [C.M.] in new school system and extracurricular activities and a failure to accommodate Father's parenting time after relocation when [C.M.] is unable to be at scheduled parenting time with Father when Father's parenting time conflicts with son's activities,

d) Mother's recent marriage to an individual with multiple legal cases not disclosed to the guardian ad litem; including approximately thirteen criminal/traffic cases, seventeen civil cases including a protective order issued in which new husband was later charged with invasion of privacy. GAL testified at hearing that these were issues of concern and not disclosed in interview prior to first GAL report,

e) Mother's recent actions in calling police to investigate potential child abuse by Father while [C.M.] was in Father's home that were unsubstantiated, such that police encouraged Father to file a false report [claim] against Mother,

f) Mother's previous filing of contempt actions that were not substantiated after hearing,

g) the parties are no longer able to communicate effectively regarding [C.M.].

Appealed Order at 5-6 (citations omitted) (capitalization added). Accordingly, the trial court found that there had been "a substantial change in circumstances that affects the best interests of the child[.]" Id. at 6.

[6] In specifically considering the statutory factors regarding child custody provided in Indiana Code Section 31-17-2-8, the trial court found,

a) [C.M.] is an eleven-year-old male and had voiced a desire to continue to live with Mother to the GAL in the GAL's first report. The GAL at hearing, after second GAL report, did not give recommendation regarding custody and advised that the child would flourish with either parent.

b) the lack of family with whom [C.M.] has close ties in the new location and the move substantially hinders Father's participation in extracurricular activities,

c) the legal history of Mother's new husband,

d) [C.M.'s] positive adjustment to the new school in Richmond, Indiana is noted as well [as C.M.'s] positive adjustment to a summer sports program while at Father's summer parenting time indicating [C.M.] is adaptable to new environments,

e) both parents love the child, are fit and proper parents, and each want primary physical custody,

f) the actions of Mother since the re-location that have not accommodated Father's parenting time and as outlined [above],

g) the Court takes judicial notice of previous hearings and the Court file and notes a pattern of Mother's attitude being dismissive and somewhat hostile towards Father's communication and involvement with [C.M.] and general attitude of cooperation displayed by Father,

h) the Court considers [that C.M.] has primarily resided with Mother, however [C.M.] has spent extended time with Father during summers and Father has stable housing in a good school district and [C.M.] has participated in summer programs there,

i) the parents have current joint legal custody. However, the decisions are for the most part being made by Mother and Father is required to adapt. Both parents are exceptional parents, the issue in determining whether joint legal custody is appropriate is not the parties['] respective parenting skills, but their ability to work together for the best interests of [the child] ... the trial court is placed in a position of choosing one parent over the other regarding legal custody, because of their inability to communicate and work together.

j) [C.M.] has no close ties with any extended family in new location of Richmond, Indiana and relocation takes [C.M.] one and one half to two hours away from all extended family of Father who had close relationship with [C.M.] when [C.M.] lived in Dearborn County.

Id. at 7-9.

[7] Based upon the foregoing, and the court's review of the "totality of the circumstances," the trial court concluded that C.M.’s interests would be best served by a modification of custody to Father having primary physical and full legal custody. Id. at 9. Therefore, the trial court ordered that Father shall have physical custody of C.M., with C.M. attending school in Father's jurisdiction as of January 1, 2020. Mo...