T.L. v. J.L.

• Court: Indiana Appellate Court
• Writing for the Court: OPINION
• Citation: T.L. v. J.L., 950 N.E.2d 779 (Ind. App. 2011)
• Decision Date: 17 August 2011
• Docket Number: No. 54A01–1008–DR–386.,54A01–1008–DR–386.
• Parties: T.L., Appellant–Petitioner,v.J.L., Appellee–Respondent.

950 N.E.2d 779

T.L., Appellant–Petitioner,

v.J.L., Appellee–Respondent.

No. 54A01–1008–DR–386.

Court of Appeals of Indiana.

June 14, 2011.Rehearing Denied Aug. 17, 2011.

Caroline B. Briggs, Lafayette, IN, Attorney for Appellant.John S. Capper, IV, Capper Tulley & Reimondo, Crawfordsville, IN, Attorney for Appellee.

OPINION

ROBB, Chief Judge.

Case Summary and Issue

T.L. (“Mother”) filed a notice of intent to relocate from Indiana to Tennessee with her two sons, ten-year-old J.B.L. and seven-year-old B.L. J.L. (“Father”) objected and filed a motion to prevent relocation of the children, which the trial court granted following an evidentiary hearing. Mother appeals and raises three issues for our review, which we consolidate and restate as whether the trial court's judgment is clearly erroneous. Concluding that Mother has shown good faith and legitimate reasons for proposing the relocation, but the trial court did not clearly err in finding that relocation was not in the children's best interests, we affirm.

Facts and Procedural History¹

Mother and Father married in 1999 and two children, both boys, were born of the marriage: J.B.L. in May 2000 and B.L. in November 2003. In September 2008, Mother filed for dissolution, and a dissolution decree was entered in January 2009. By agreement, Mother and Father were awarded joint legal custody of the children, with Mother having primary physical custody and Father exercising parenting time as agreed or, in the absence of agreement, according to the Indiana Parenting Time Guidelines. Father was to pay $275 per week in child support, an amount subsequently reduced by an agreed order to $212 per week. In addition, Mother was awarded the marital residence and accompanying mortgage with Mother to pay Father his share of the equity.

At all times during the marriage and since, Mother and Father have resided in Montgomery County, Indiana. Father is a lifelong resident of Montgomery County and has been an officer with the Crawfordsville Police Department for the past twenty-five years. Mother moved from Tullahoma, Tennessee, to Montgomery County in 1998 to work as a customer service manager for Fujicolor Processing. She planned to work in Montgomery County for one year to gain management experience and then return to Tennessee, but after meeting and marrying Father, she continued to work for Fujicolor until its Crawfordsville operations closed in 2008. Mother then took a job with Temple–Inland in Crawfordsville and remains employed there as a customer service representative, earning approximately $40,000 per year, which is $10,000 less than she earned at Fujicolor. Mother finds this job to be unfulfilling with no opportunity of advancement. While she has an associate's degree in psychology and bachelor's degree in business administration, she has not sought other employment in the Crawfordsville area.

Father lives 1.5 miles from Mother and the children and 7.5 miles from the children's school. He exercises overnight parenting time every other weekend, over some holidays, and for two weeks during the summer.² In addition, on weekdays Father is active in the boys' sporting activities, including baseball, basketball, football, and soccer. Father has purchased their sports equipment, coached their teams, and provides transportation to their practices and games. He also picks the boys up after school every weekday and supervises them until Mother returns from work.³

Father's parents, his two siblings, and their children all live in Montgomery County. Father's parents regularly attend the boys' sporting events and have the boys for some overnights at their home. Father's parents and siblings get together for major holidays throughout the year and cookouts during the summer, gatherings in which the boys and their cousins are included.

Mother's parents, her maternal grandmother, an aunt, two great-aunts, and several cousins reside in the Tullahoma, Tennessee area. The maternal grandmother has stage-three leukemia, early-stage dementia, and other health problems, and lives in an assisted living facility. As a result of the maternal grandmother's residence in a facility, the home where she formerly lived—a furnished, 2,500–square–foot home on 150 acres of farmland—is vacant but remains owned by Mother's family. It is to this residence near Shelbyville, Tennessee, approximately twenty miles from Tullahoma, that Mother wishes to relocate with the children.

On January 25, 2010, Mother filed her notice of intent to relocate, to which Father filed an objection. Mother's stated reasons for the relocation were:

• As Mother is an only child and an only grandchild, and her mother works full-time, Mother “needs to be in Tennessee in order to spend time with her grandmother and help care for her” in her illness.

• “All of [Mother]'s family and support system is located in Tullahoma, Tennessee”; Father promised to take Mother back to Tennessee when Mother agreed to marry him; “[a]t this time, [Mother] has no one in Crawfordsville to help her with anything”; and the winters in Indiana are hard on Mother as she has no one to help clear snow from her driveway.

• Mother finds “no challenge or future in the job that she is now working” in Crawfordsville. She wishes to pursue a career as a registered nurse or nurse practitioner in order to have more “job stability and financial security.” [[[⁴

• Mother's parents have offered to pay for her nursing education in Tennessee but cannot pay for schooling in Indiana because they are already assisting Mother with her $1,349 mortgage payment on the Montgomery County residence. By moving to Tennessee, Mother could sell the Montgomery County residence and live rent-free in a home owned by her family.

• The home to which Mother would move the children has “unlimited access to fishing, raising animals, riding 4–wheelers, and playing outside,” and the land has been in Mother's family for six generations. The children have told Mother they wish to move there,⁵ and as the only grandchildren in the family, they would receive individual attention from Mother's family.⁶

Appendix at 14–16. Mother testified that if relocation of the children is denied, she will not relocate herself but will investigate other possible employment in the Montgomery County area.

Father's objection contended that it is not in the best interests of the children to move and that the move would end his ability to be significantly involved in the children's lives. Father requested, and the trial court granted, an injunction to prohibit Mother from relocating with the children until the merits of Mother's relocation were resolved.

On May 14, 2010, an evidentiary hearing was held at which Mother, Mother's parents, Father, and members of Father's family testified. The trial court took the matter under advisement and, on August 4, 2010, issued its findings of fact, conclusions of law, and judgment. The trial court's findings of fact that Mother does not challenge include:

6. ... [Mother] does not have employment, or the immediate prospect of employment, in Tennessee.

* * *

8. Since the marriage was dissolved, [Father] has had exceptionally frequent contact with the boys. Immediately after the divorce, he saw them daily at [Mother]'s residence in the morning and assisted them in getting ready for school. He also picks them up after school and is with them until [Mother] is home from work. The daily morning contact was ended by [Mother] in the fall of 2009 when [Father] began dating [D.H.], with whom he still maintains a relationship.

* * *

10. If [Mother] moves with the children, she proposes that [Father] would have them one-half the time they are not in school (Tullahoma has a “non-traditional” school calendar with an eight-week summer break and two-week spring and fall breaks), alternate Thanksgiving and Christmas holidays, and a weekend every six weeks with the parties meeting halfway to exchange the children.

* * *

12. Both children have good relationships with each parent, and with their extended families. Both are good students and enjoy good health....

13. ... Tullahoma is six hours away by automobile, or a 12–hour round trip from Crawfordsville. Relocation would end [Father]'s frequent contact with the boys and exclude him from his involvement in their school, extracurricular and every-day activities, as well as the regular and frequent involvement of his family.

Id. at 21–23. The trial court concluded that “[Mother] has failed to meet her burden of proof that the proposed relocation is for a legitimate reason and in good faith. Further, although the burden of proof therefore does not shift to [Father], he has clearly shown that the move would not be in the best interests of the children.” Id. at 26.

The trial court ordered that Mother shall not relocate with the children and the parties shall continue to have joint legal custody with Mother having primary physical custody. Mother now appeals. Additional facts will be supplied as appropriate.

Discussion and Decision

I. Standard of Review

The trial court entered findings of fact and conclusions of law pursuant to Father's request under Indiana Trial Rule 52(A). Our standard of review is well-settled:

[W]e must first determine whether the record supports the factual findings, and then whether the findings support the judgment. On appeal, we will not set aside the findings or judgment unless they are clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. We therefore consider only the evidence favorable to the judgment and the reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility. A judgment is clearly erroneous when there is no evidence to support the findings, the findings do not support the judgment, or the trial court applies the wrong legal standard to properly found facts.

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