Milcherska v. Hoerstman
56 N.E.3d 634
| Ind. Ct. App. | 2016Background
- Parents (Milcherska — Mother; Hoerstman — Father) shared custody of A.H., born 2004; alternating-week parenting time by 2014 agreement.
- In 2015 Mother accepted a job in Brownwood, Texas and filed notice to relocate; Father objected and sought modification to keep the child in Indiana for school.
- Temporary orders initially allowed relocation but later restrained relocation until the final hearing; a guardian ad litem (GAL) was appointed.
- At the final hearing the child’s therapist testified that A.H. (age 11) suffered increased anxiety related to Mother’s home and was emotionally more connected to Father; GAL similarly recommended that A.H. remain with Father.
- The probate court denied Mother’s relocation, awarded Father primary physical custody and sole legal custody, and required Mother to pay GAL fees; Father’s request for attorney’s fees was denied.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether evidence supports denial of Mother’s relocation and modification of physical custody | Relocation was in good faith; statutory best-interest factors are in equipoise so denial is clearly erroneous | Child’s emotional health, therapist and GAL testimony, community ties, and distance weigh against relocation | Affirmed: sufficient evidence to deny relocation and award primary physical custody to Father |
| Proper weight to give child’s wishes (age 11) | Court over-weighted A.H.’s wishes; Section 8 gives more weight only at age 14+ so her wishes should be discounted | Child’s maturity, in-camera assessment, therapist and GAL views justify significant weight | Affirmed: court permissibly accorded significant weight to an unusually mature 11‑year‑old |
| Requirement for written findings of fact and conclusions of law | Probate court abused discretion by not issuing written findings allocating weight to factors | No special findings were requested; court orally explained which Section 8 factors it found important | Affirmed: oral findings and credited testimony provided sufficient basis; no error in declining special findings |
| Sufficiency of evidence to award sole legal custody to Father | Joint legal custody was appropriate because both parents were fit | Parents’ longstanding conflict and inability to cooperate made joint legal custody unworkable; child’s emotional needs favor Father | Affirmed: substantial evidence of inability to cooperate and child’s needs justified sole legal custody to Father |
| Whether trial court abused discretion by denying Father’s request for attorney’s fees | (Father) Mother’s greater income warrants fee award | (Mother) income now tenuous; both parties contributed to contentious litigation; court already allocated GAL fees to Mother | Affirmed: no prima facie error; court reasonably denied attorney’s fees given findings |
Key Cases Cited
- Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008) (standard of review for custody findings and deference to trial court)
- D.C. v. J.A.C., 977 N.E.2d 951 (Ind. 2012) (relocation and custody matters afford trial court substantial deference)
- Sabo v. Sabo, 858 N.E.2d 1064 (Ind. Ct. App. 2006) (permissible to rely on a child’s wishes when other factors are in equipoise)
- Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App. 2001) (joint legal custody requires parents able and willing to cooperate)
- Speaker v. Speaker, 759 N.E.2d 1174 (Ind. Ct. App. 2001) (attachment to home/school/community can support denying relocation)