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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: THOMAS A. DYSERT STEVEN E. RIPSTRA Ripstra Law Office Jasper, Indiana

ATTORNEY FOR APPELLEE: JOSEPH VERKAMP Jasper, Indiana

IN THE COURT OF APPEALS OF INDIANA
GARY LEE MEREDITH, III, Appellant-Petitioner, vs. LAURA MEGHAN MEREDITH, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 74A01-0701-CV-23

APPEAL FROM THE SPENCER CIRCUIT COURT The Honorable Wayne A. Roell, Judge Cause No. 74C01-0502-DR-68

May 3, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Gary Lee Meredith, III ("Father"), appeals the trial court's denial of his petition for custody modification and verified petition for contempt citation. We affirm. Issues Father presents two issues, which we restate as follows: I. Whether the trial court abused its discretion in denying his petition for custody modification; and Whether the trial court abused its discretion in denying his petition for contempt citation. Facts and Procedural History The evidence most favorable to the trial court's ruling is as follows. On June 17, 2000, Father married Laura Meghan Meredith ("Mother"). After the marriage, Mother moved from Phelps, Kentucky, to Father's residence in Dale, Indiana. On April 7, 2003, the couple had a son, K.M. Subsequently, Mother's parents moved to Dale, Indiana, to be near their daughter and grandson. Father works second shift and is absent from the home between the hours of 6:00 p.m. and 3:30 a.m. When he arrives home, he goes to bed and sleeps until 11:00 a.m. Over the course of the marriage, Mother worked a series of part-time and seasonal jobs. She was K.M.'s primary caregiver. She changed his diapers, attended to his needs in the middle of the night, took him to the doctor, and fed, clothed, and bathed him. Father describes her as a "good mother." Tr. at 26. Mother filed a petition for dissolution of marriage on February 22, 2005. The next day, the parties agreed that Mother would have custody of K.M. until the final dissolution
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II.

hearing. On December 14, 2005, the final decree was entered. The couple also signed a child custody, support, and division of property agreement, establishing joint legal custody of K.M. with Mother having physical custody subject to Father's right of visitation. In early June 2006, Mother decided to relocate to Bean Station, Tennessee, approximately six hours from Dale, Indiana, by car. On June 9, 2006, she filed with the trial court a notice of intent to move. On June 23, 2006, Father filed a petition for custody modification. In late June 2006, Mother visited Bean Station and submitted job applications. Shortly thereafter, she and her parents moved to Bean Station, and she began working fulltime at a pharmacy. Mother has many family members in Bean Station, including her brother, aunts, uncles, and grandparents. Mother and K.M. live in a fully furnished apartment in the basement of her grandparents' house. K.M.'s maternal grandmother cares for him while Mother is working. On July 6, 2006, Father filed a verified petition for contempt citation, alleging that Mother "has willfully failed and/or refused to abide by the Court's order by denying the Father parenting time." Appellant's App. at 26. A hearing on all pending issues was held on October 3, 2006. On October 11, 2006, the trial court denied Father's petition for custody modification and his verified petition for contempt citation. Father now appeals. Discussion and Decision I. Petition for Custody Modification Father argues that the trial court erred in denying his petition for custody modification. Our standard of review is well-settled.

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In general, we review custody modifications for an abuse of discretion, with a preference for granting latitude and deference to our trial judges in family law matters. When reviewing a trial court's ruling on a petition to modify custody, we may neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we consider only the evidence most favorable to the judgment and any reasonable inferences that may be drawn from that evidence. Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006) (quotation marks and citations omitted). In the initial custody determination, both parents are presumed equally entitled to custody, but a petitioner in a subsequent modification bears the burden of demonstrating that the existing custody order should be altered. Bettencourt v. Ford, 822 N.E.2d 989, 998 (Ind. Ct. App. 2005). "`[I]t 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.'" 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)). Here, Mother filed a notice of intent to move, as required by Indiana Code Section 3117-2-23(a). The purpose of this statute is to afford the trial court an opportunity to modify the original custody order, if necessary. Bettencourt, 822 N.E.2d at 997-98. In making a determination regarding custody modification following a custodial parent's relocation, the trial court must construe the notice of intent to move statute in conjunction with the child custody modification statute, Indiana Code Section 31-17-2-21. Id. Indiana Code Section 31-17-2-23, which was in effect at the time Mother filed her notice of intent to move, required the trial court to take into account two factors in determining whether to modify custody: (1) the distance involved in the proposed change of

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residence; and (2) the hardship and expense for the non-custodial parent to exercise visitation rights. 1 Indiana Code Section 31-17-2-21(a) states in relevant part that the 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.]" 2 Those factors are: (1) The age and sex of the child. (2) The wishes of the child's parent or parents. (3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child's parent or parents;
Father argues that the recently revised notice of intent to move statute--Indiana Code Section 3117-2.2-1, effective July 1, 2006--should apply retroactively to this case. In addition to the two factors in the prior version, the current statute lists additional factors to be considered by the trial court upon the relocation of a custodial parent: (3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties. (4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual's contact with the child. (5) The reasons provided by the: (A) relocating individual for seeking relocation; and (B) nonrelocating parent for opposing the relocation of the child. (6) Other factors affecting the best interest of the child. Ind. Code

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