Preview:

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.

FILED
Sep 19 2008, 9:28 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: STEVEN M. BUSH Millbranth and Bush Valparaiso, Indiana

ATTORNEY FOR APPELLEE: DAVID A. BROOKS Brooks & Hine, P.C. Valparaiso, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEVIN R. SCHULTZ, Appellant-Petitioner, vs. JANEL R. (SCHULTZ) MARSH, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 66A03-0804-CV-168

APPEAL FROM THE PULASKI SUPERIOR COURT The Honorable Jeanene Calabrese, Special Judge Cause No. 66D01-0201-DR-2

September 19, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellant-Petitioner Kevin Schultz appeals the order denying his motions to prevent relocation and to modify custody regarding Appellee-Respondent Janel Marsh's intention to move with their children to Texas. We affirm. Issues Schultz raises three issues on appeal, which we consolidate and restate as: I. Whether Marsh's Notice of Intention to Relocate was properly before the trial court due to Marsh's failure to comply with the Relocation Statute; and Whether the trial court abused its discretion in denying Schultz's motions to prevent relocation and modify custody. Facts and Procedural History 1 The marriage of Schultz and Marsh was dissolved on July 11, 2002. Pursuant to the settlement agreement, the parties had joint legal custody of their two girls, and Marsh had physical custody with Schultz having parenting time. In 2005, Marsh remarried. Due to her husband's military assignment to Fort Hood, Texas, Marsh provided Schultz's counsel with a "Notice of Intent to Relocate" in October 2007. The Notice provided in part: 1. That a new address has not yet obtained, however, the residence will be in the Fort Hood, Texas area. 2. That no relocation date has been set, however the Respondent intends to move mid to
We note that some items in the Appellant's Appendix are unnecessarily repetitive. First, contrary to Indiana Appellate Rule 50 (A)(2), Schultz's counsel included the entire 250-page transcript in the appendix. Only those brief portions of the transcript containing the rationale of the decision or that are important to a consideration of the issues should be duplicated and included in the appendix. See Ind. Appellate Rule 50(A)(2)(d) and (g). As required by Rule 50(A)(2)(a), Schultz's counsel included the chronological case summary (CCS). However, he also included seven "Chronological Case Summary" sheets in the appendix. This is unnecessary as this information is already contained in the CCS.
1

II.

2

late October, 2007. .... 6. That because specific information is not included herein, the Respondent will supplement this Notice as new information becomes available. Appellant's Appendix at 426-27. The chronological case summary does not reflect the submission of the Notice to the trial court. On October 5, 2007, Schultz filed a Motion for Change of Judge, Verified Motion for Temporary Restraining Order, Verified Motion to Modify Custody, Motion to Prevent Relocation, and Motion for Custodial Evaluation. The change of judge was permitted pursuant to the parties stipulating to the appointment of a special judge. After a hearing on the Verified Motion for Temporary Restraining Order, the trial court ordered Marsh to remain in Indiana with the two children until the pending motions were resolved. After several days of hearings on the remaining motions, the trial court issued its Findings of Fact, Conclusions of Law and Order on March 19, 2008. The trial court concluded that the parties had complied with Indiana Code Chapter 31-17-2.2, governing the relocation of a custodial parent with minor children. It also concluded that Marsh's reasons for relocation were legitimate and made in good faith, shifting the burden to Schultz to prove that the relocation is not in the best interests of the children. Finally, the trial court concluded that Schultz had not met that burden and denied Schultz's outstanding motions. Accordingly, the trial court also granted Marsh's request to relocate the children to Fort Hood, Texas. Additional facts will be provided as needed. This appeal ensued.

3

Discussion and Decision Standard of Review The trial court entered findings of fact and conclusions of law at the request of both parties. Pursuant to Indiana Trial Rule 52(A), our standard of review is to determine whether the evidence supports the findings and then whether the findings support the conclusion. As the trial court is charged with determining the credibility of the witnesses, we will "not set aside the findings or judgment unless clearly erroneous." Ind. Trial Rule 52(A). Clear error exists where the record does not offer facts or inferences to support the trial court's findings or conclusions of law. Rogers v. Rogers, 876 N.E.2d 1121, 1126 (Ind. Ct. App. 2007), trans. denied. Appellate courts give considerable deference to the findings of the trial court in family matters. MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). Whether the appropriate standard of review is abuse of discretion or clear error, "this deference is a reflection, first and foremost, that the trial judge is in the best position to judge the facts, to get a feel for the family dynamics, to get a sense of the parents and their relationship with their children - the kind of qualities that appellate courts would be in a difficult position to assess." Id. Additionally, appellate decisions that change the results below are especially disruptive in the family law setting. Id. Finally, "the particularly high degree of discretion afforded trial courts in the family law setting is likely also attributable in part to the `fluid' standards for deciding issues in family law cases that prevailed for many years." Id. at 94041. I. Compliance with Relocation Statute 4

First, Schultz asks this Court to reverse the trial court's order on the basis that Marsh did not comply with the requirements of the Relocation Statute codified in Indiana Code Chapter 31-17-2.2. 2 For the circumstances of this case, Section 1(a) of this statute states that "[a] relocating individual must file a notice of the intent to move with the clerk of the court that issued the custody order or parenting time order and send a copy of the notice to any nonrelocating individual." We understand Schultz's argument as demanding the reversal of the grant of Marsh's request to relocate due to Marsh's failure to file her notice of intent to move with the trial court. However, Schultz does not articulate the exact remedy he seeks: dismissal or the grant of his motion to prevent the relocation. Dismissal would be a waste of personal and judicial resources as Marsh would refile and the subsequent hearing would involve the same evidence and issues. To reverse the trial court and grant Schultz's motion to prevent the relocation would be elevating form over substance. There are areas of the law and circumstances when form or procedure is dispositive. However, family law, especially where the paramount consideration is the best interests of a child, is generally not an area where form should trump substance. Although we agree with Schultz that the proper procedure requires the relocating individual to file the notice with the trial court, we conclude that the issue of Marsh's intent to move and its potential effects on the children and Schultz was presented to and addressed by the trial court. Schultz accomplished this by filing his motions for a temporary restraining
2

Schultz characterizes this as an issue of jurisdiction. "Attorneys and judges alike frequently characterize a claim of procedural error as one of jurisdictional dimension." K.S. v. State, 849 N.E.2d 538, 541 (Ind. 2006). Such is the case here. Marsh's failure to submit her Notice of Intent to Relocate to the trial court does not affect the trial court's subject-matter jurisdiction. Rather, it is a question of whether the proper procedure was

5

order and to prevent the relocation. Furthermore, Marsh provided the notice to Schultz's counsel. Informing the nonrelocating individual of the other individual's intent to relocate the child is the essential purpose of the statute. This was accomplished and provided Schultz the opportunity to object and present relevant evidence. Seeking the remedy of the denial of Marsh's request to relocate, Schultz also takes issue with Marsh's failure to comply with the notice requirements of Section 3 of the Relocation Statute. Section 3 provides that the individual required to file a notice must: (1) send the notice to each nonrelocating individual: (A) by registered or certified mail; and (B) not later than ninety (90) days before the date that the relocating individual intends to move; and (2) provide the following information in the notice: (A) The intended new residence, including the: (i) address; and (ii) mailing address of the relocating individual, if the mailing address is different than the address under item (i). (B) The home telephone number of the new residence. (C) Any other applicable telephone number for the relocating individual. (D) The date that the relocating individual intends to move. (E) A brief statement of the specific reasons for the proposed relocation of the child. (F) A proposal for a revised schedule of parenting time or grandparent visitation with the child. (G) A statement that a parent must file an objection to the relocation of the child with the court not later than sixty (60) days after receipt of the notice. (H) A statement that a nonrelocating individual may file a petition to modify a custody order, parenting time order, grandparent visitation order, or child support order.

utilized to place before the trial court the issue of Marsh's request to relocate.

6

Marsh does not dispute that her notice was not sent by certified or registered mail, nor at least 90 days prior to the intended relocation. The notice also did not contain the new intended address or phone number. The Relocation Statute specifies the remedy when a notice is deficient. "If a nonrelocating parent files a motion [to prevent relocation], the court . . . may grant a temporary order restraining the relocation of a child . . . if the court finds: (1) that the notice required . . . under this chapter was not served in a timely manner and the parties have not presented an agreement concerning a parenting time schedule." Ind. Code

Download Kevin R. Schultz v. Janel R..pdf

Indiana Law