7 N.E.3d 316
Ind. Ct. App.2014Background
- Marriage in 2001 in Albion, Indiana; two children born 2004 and 2007; Father works in Goshen, Mother from home in Grand Rapids area.
- Spring 2012 separation; August 28, 2012 dissolution decree with joint legal custody and Mother primary physical custody; Father parenting time as set.
- Mother and Fiance moved to Albion then sought larger home; baby on the way; need for more space and home office space.
- Mother planned relocation to Goshen (≈30 miles from Albion) contingent on court approval; both parties pursued relocation for family/household reasons.
- April 3, 2013 notice of relocation; May–June 2013 evidentiary hearing; June 11, 2013 trial court granted relocation and denied Father’s custody modification.
- July 11, 2013 Father moved to correct error; arguments on good faith/legitimate reason and best interests; cross-appeal for appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relocation: good faith/legitimate reason and best interests | Gilbert argues relocation lacks good faith and is not in Children’s best interests. | Gilbert contends relocation is for legitimate reasons and is in Children’s best interests. | Relocation approved; good faith/legitimate reason shown; best interests satisfied. |
| Appellate fees: frivolous or bad faith appeal | Father’s appeal was in good faith and properly argued. | Father’s appeal was frivolous/bad faith; seeks fees under Rule 66(E). | No appellate attorney fees awarded; appeal not frivolous or in bad faith. |
Key Cases Cited
- Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008) (finality important in child custody matters; defer to trial court’s judgment)
- D.C. v. J.A.C., 977 N.E.2d 951 (Ind. 2012) (grant of relocation requires consideration of good faith/legitimate reasons; deference to trial court)
- In re Paternity of X.A.S. v. S.K., 928 N.E.2d 222 (Ind. Ct. App. 2010) (in camera interview not absolute; discretion to admit evidence after close)
- H.H. v. A.A., 3 N.E.3d 30 (Ind. Ct. App. 2014) (relocation as legitimate reason; compare school quality; school consideration varies)
- Kietzman v. Kietzman, 992 N.E.2d 946 (Ind. Ct. App. 2013) (affirming relocation when legitimate reasons exist and best interests support move)
- Thacker v. Wentzel, 797 N.E.2d 342 (Ind. Ct. App. 2003) (appellate damages only for wholly frivolous appeals; restraint urged)