Opinion
23A-DC-2219
08-16-2024
Darren Schmitt, Appellant-Respondent v. Jenna Lehmkuhler (Schmitt/Oldham), Appellee-Petitioner
ATTORNEY FOR APPELLANT Yvette M. LaPlante Gonterman and Meyer, LLC Evansville, Indiana. ATTORNEY FOR APPELLEE April L. Edwards Law Offices of April L. Board Edwards Boonville, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Warrick Superior Court The Honorable Benjamin R. Aylsworth, Special Judge Trial Court Cause No. 87D02-1912-DC-001945
ATTORNEY FOR APPELLANT Yvette M. LaPlante Gonterman and Meyer, LLC Evansville, Indiana.
ATTORNEY FOR APPELLEE April L. Edwards Law Offices of April L. Board Edwards Boonville, Indiana.
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] Darren Schmitt ("Father") and Jenna Lehmkuhler ("Mother") (collectively, "Parents") are the biological parents of B.S. ("Son") and A.S. ("Daughter") (collectively, the "Children"). Parents were divorced in February 2020. The dissolution decree awarded Parents joint legal custody, and Mother was awarded primary physical custody of the Children with Parents having equal parenting time. Both Mother and Father relocated after the divorce, and neither provided notice as required by Indiana law. Subsequently, Parents filed dueling motions to modify custody and parenting time, among other filings. After a hearing on all pending issues, the trial court declined to modify custody but did modify parenting time. Father now appeals and raises two issues for our review, which we restate as follows:
Formerly known as Jenna Oldham and Jenna Schmitt.
By the time of the hearing, the parties had filed more than a dozen different motions regarding custody, parenting time, and contempt.
1. Whether the trial court clearly erred by not using the Relocation Statute to determine whether to modify parenting time and custody; and
2. Whether the trial court clearly erred by not modifying custody.
Mother requests appellate attorneys' fees.
[¶2] We affirm the trial court on all issues raised and deny Mother's request for appellate attorneys' fees.
Facts and Procedural History
[¶3] Son was born on July 24, 2007, and Daughter was born on November 3, 2011. When Mother filed for divorce in December 2019, Parents' marital home was located in Boonville, Warrick County, Indiana. Parents were divorced on February 4, 2020. In the dissolution decree, Mother was awarded primary physical custody of the Children, and Parents were awarded joint legal custody of the Children with Mother having "final decision[-]making ability." Appellant's App. Vol. II at 3. The dissolution decree did not address child support; on February 18, 2020, the dissolution court clarified in a docket entry that the "court does not enter a child support order as the parents have 50/50 parenting time." Id. at 4.
[¶4] At the time of the divorce, Mother was living with a friend in Pike County. In May 2020, Mother moved to Marengo, Crawford County, Indiana. Father knew of Mother's relocation by at least May 8, 2020. In July 2020, Father moved to Dale, Spencer County, Indiana. Neither party provided notice of their respective relocations in accordance with the Relocation Statute, Ind. Code §§ 31-17-2.2-0.5 to -6.
[¶5] On July 24, 2020, Father filed his "Verified Petition to Modify and Motion to Reinstate Guardian ad Litem," alleging that since the dissolution decree was entered in February, "substantial changes in circumstances have occurred which warrant a modification of custody in this matter and in support of the children's best interests." In this motion, Father cited to only Indiana Code sections 31-17-2-8 (the "Custody Factors") and 31-17-2-21 (the "Modification Factors"). Appellant's App. Vol. II at 35. However, that petition does not provide any details regarding the alleged change in circumstances. See id. at 3536. On August 21, 2020, Father filed his "Verified Information for Contempt of Court," alleging Mother was in contempt of prior court orders for numerous reasons. While not alleging that Mother's relocation was contemptuous, Father also noted that "Mother relocated her residence from Boonville, Indiana, to Marengo, Indiana without notifying the Father." Id. at 38. A few days later, Mother filed a petition to change venue from Warrick County to Crawford County and alleged that she "was not aware of the requirement of the filing of a notice of intent to move residence when moving." Id. at 41. The trial court denied Mother's request to change venue.
[¶6] On September 4, 2020, Mother filed her "Verified Petition to Modify Child Custody, Parenting Time, and Request to Establish Child Support," and her requests for modification were based almost entirely on the effects the parties' respective relocations had on the Children's schedules. Appellant's App. Vol. II at 48-50. Similar to Father's previously filed motion, Mother's motion cited to only the Custody Factors and the Modification Factors. Less than a week later, Father filed another "Verified Information for Contempt," alleging in relevant part that since "Mother has moved the minor children to different schools approximately one hour away, it has caused a hardship for the Father to get the kids during his Parenting Time." Id. at 51. On June 30, 2021, Father filed a motion seeking the immediate return of the Children to Warrick County based on Mother's relocation of the Children to Crawford County in May 2020. This motion, in seven pages, was Father's first time citing to the Relocation Statute. On July 14, 2022, Father filed a second motion seeking the immediate return of the Children to Warrick County based on Mother's relocation of the Children to Crawford County in May 2020. This second motion, now in eight pages, was virtually identical to the first except that Father added eight additional enumerated paragraphs.
[¶7] The trial court held an evidentiary hearing on all pending motions and petitions across six days in January, February, March, and June 2023. On August 25, 2023, the trial court issued its order on all pending issues, in which it made the following relevant findings and conclusions: the trial court (1) declined to modify custody because it found that there was not "a substantial and continuing change in circumstances" that justified modifying custody and that modifying custody was not in the Children's best interests, Appellant's App. Vol. II at 26; (2) modified parenting time because it found that there was "a substantial and continuing change in circumstances," namely that "the minor children have resided primarily with Mother for almost three (3) years now attending a new school which they have adapted well to and the GAL reports indicate the children desire to remain," id. at 27; and (3) modified Father's child support obligation. The trial court also made the following relevant findings and conclusions regarding the parties' relocations:
Concerning relocation, the Mother did not violate the prior custody order as it was clear that despite the parties having joint legal custody, she had the "final decision making ability," to determine which school district they would attend.
It is not in dispute that Mother violated the Notice of Relocation statute .... Mother's potential violation of the parenting time order at the time of the relocation was a result, but the Court declines to find her in Contempt on that issue as Father still could have exercised his entire 50/50 parenting time while the children attended the other school district approximately one (1) hour away, but was either unable due to his early morning work schedule or unwilling due to personal inconvenience. It must also be noted that Father also failed to provide notice of his own relocation that would have ultimately placed the children in a different school as well ....Id. at 30. Father now appeals. Discussion and Decision
Both parties fail to provide citations for statements of fact in their Statements of Case, Statements of Fact, and Arguments, as required by Indiana Appellate Rules 46(A)(5), 46(A)(6)(a), and 46(A)(8)(a), respectively. The parties' noncompliance with Appellate Rule 46 does not substantially impede our review of this appeal, so we choose to address the merits thereof. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015). We also remind the parties to include only relevant facts in their briefs. Ind. Appellate Rule 46(A)(6).
[¶8] Father challenges the trial court's decisions to modify parenting time and to not modify custody. The trial court here entered findings and conclusions sua sponte, so we review the "issues covered by the findings with a two-tiered standard of review that asks whether the evidence supports the findings, and whether the findings support the judgment." Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016) (citing In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014)). We review any issue not covered by the findings "under the general judgment standard," which means we will affirm "on any legal theory supported by the evidence." Id. at 123-24 (citing S.D., 2 N.E.3d at 1287). Additionally, our review is guided by the following considerations unique to family law cases:
there is a well-established preference in Indiana "for granting latitude and deference to our trial judges in family law matters." In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993). Appellate 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." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). "On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal." Id. "Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment." Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted).Steele-Giri, 51 N.E.3d at 124. Furthermore, we accept as true any findings not challenged on appeal. See R.M. v. Ind. Dep't of Child Servs., 203 N.E.3d 559, 564 (Ind.Ct.App. 2023) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)).
1. The Trial Court Did Not Err by Not Using the Relocation Statute to Determine Whether to Modify Custody and Parenting Time
[¶9] Father contends that the trial court should have applied the Relocation Statute to determine whether to modify custody and parenting time. We cannot agree. Although Mother did not provide Father notice of her move pursuant to the Relocation Statute, Father testified that he knew of Mother's move no later than May 8, 2020. Tr. Vol. VIII at 70-71. Yet Father waited until June 30, 2021, to file any type of objection to Mother's move. Appellant's App. Vol. II at 129-37.
Father frames his argument in terms of custody modification and asserts that the trial court improperly found "a substantial change of circumstances to justify a custody modification." Appellant's Br. at 16. Contrary to this assertion, the trial court found there was no substantial and continuing change in circumstances justifying a change in custody and thus denied the parties' requests to modify custody. Appellant's App. Vol. II at 26-27. However, the trial court did find that there was "a substantial and continuing change of circumstances . . . since the date of the parties['] last equal parenting time order," namely that the Children had "resided primarily with Mother for almost three (3) years now attending a new school which they have adapted well to and the GAL reports indicate the children desire to remain." Id. at 27. We address Father's argument in the context of the trial court's refusal to modify custody and modification of parenting time. See I.C. § 31-17-2.2-1(c).
[¶10] In Jarrell v. Jarrell, this court determined that formal notice of relocation is not required before the nonrelocating parent may object to the relocation under Indiana Code section 31-17-2.2-6(a)(2)(A), and if the nonrelocating parent fails to timely avail himself or herself of the remedies available in that statute, then the nonrelocating parent is deemed to have acquiesced to the relocation. 5 N.E.3d 1186, 1192-93 (Ind.Ct.App. 2014) (citing I.C. § 31-17-2.2-6(a)(2)(A)), trans. denied. If the nonrelocating parent acquiesces to the relocation, then the Modification Statute-rather than the Relocation Statute-supplies the factors the trial court uses to determine whether to modify custody. Id. at 1194. Here, by waiting more than a year to challenge Mother's move, Father acquiesced to it. See id. at 1193-94. Consequently, the trial court was to use the Modification Statute to determine whether to modify custody and the best interests test to determine whether to modify parenting time. See Jarrell, 5 N.E.3d at 1193-94. Because the trial court used the Modification Statute and the best interests test to determine whether to modify custody and parenting time, respectively, there is no error.
[¶11] In the alternative, based upon this record, we believe it strains credulity that the parties' relocations-which resulted in less than an hour separation between Mother's and Father's homes-would have resulted in such hardship and expense for Father, or so drastically limited the feasibility of Father's ability to preserve his relationship with the Children, that the trial court would have prevented the relocation. As for Mother's good faith and legitimate reason for relocating, she moved to be with her new boyfriend, whom she married prior to the final hearing in this case; to improve the living situation for the children, who did not have their own rooms at Mother's residence in Pike County; and to seek better employment, which she obtained shortly after the move. In the context of this case, it is difficult to believe that the trial court would not have concluded these reasons were both in good faith and legitimate.
2. The Trial Court Did Not Clearly Err by Refusing to Modify Custody
[¶12] Father next argues that the trial court erred by not modifying custody. Indiana Code section 31-17-2-21 provides that a trial court "may not modify a child custody order unless: (1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under [Indiana Code section 31-17-2-8]." Indiana Code section 31-17-2-8 provides that the trial court is to consider several important factors, such as (1) the age and sex of the child, (2) the wishes of parents and the child, (3) the relationship of the child with family members, and (4) the mental and physical health of the family members, among other factors. Importantly, "[t]he party seeking to modify custody bears the burden of demonstrating the existing custody should be altered." Steele-Giri, 51 N.E.3d at 124 (citing Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)).
[¶13] Father specifically claims the trial court improperly weighed the above-listed factors, but we do not reweigh the evidence or reassess witness credibility, Steele-Giri, 51 N.E.3d at 124 (quoting Best, 941 N.E.2d at 502). Father also does not challenge any of the trial court's findings, so we take them all as true, see R.M., 203 N.E.3d at 564 (citing Madlem, 592 N.E.2d at 687). Consequently, we cannot say Father demonstrated the existing custody arrangement should be altered, so we conclude the trial court did not clearly err by refusing to modify custody.
3. Mother Is Not Entitled to Appellate Attorneys' Fees
[¶14] Finally, Mother requests appellate attorneys' fees because she believes Father's appellate claims are "meritless." Appellee's Br. at 34. In making this request, Mother focuses primarily on Father's conduct since she filed for divorce, with most of those allegations being irrelevant to our analysis under Appellate Rule 66(E). As such, we cannot say Mother has demonstrated that Father has engaged in either substantive bad faith or procedural bad faith, see Duncan v. Yocum, 179 N.E.3d 988, 1005 (Ind.Ct.App. 2021) (citing Boczar v. Meridian Street Found., 749 N.E.2d 87, 95 (Ind.Ct.App. 2001)), so she is not entitled to appellate attorneys' fees under Appellate Rule 66(E).
Conclusion
[¶15] In sum, because Father acquiesced to Mother's relocation by failing to timely object thereto, the trial court was not required to apply the Relocation Factors to determine whether to modify custody and parenting time. Additionally, the trial court did not err by refusing to modify custody, and Mother is not entitled to appellate attorneys' fees. We therefore affirm the trial court on all issues raised and deny Mother's request for appellate attorneys' fees.
[¶16] Affirmed.
Riley, J., and Kenworthy, J., concur.