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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. ATTORNEY FOR APPELLANT: KATHRYN JOHNSON Osborn, Baugher, Roule & Johnson La Porte, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROBERT A. WELLINSKI, Appellant-Respondent, vs. JOY M. WELLINSKI, n/k/a JOY BARNES, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 46A03-0605-CV-197

APPEAL FROM THE LA PORTE CIRCUIT COURT The Honorable Thomas Pawloski, Magistrate The Honorable Robert W. Gilmore, Jr., Judge Cause No. 46C01-9705-DR-192

February 13, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Robert A. Wellinski appeals the trial court's denial of his motion to modify physical custody. Robert raises three issues, which we consolidate and restate as: whether the trial court abused its discretion in denying Robert's motion to modify physical custody based on his ex-wife's relocation. Finding that the trial court acted within its discretion, we affirm. Facts and Procedural History When Robert and Joy Wellinski, n/k/a Joy Barnes, divorced on September 26, 1997, they entered into a "Final Property Settlement Agreement" (the "Agreement"), under which they agreed that they would have joint custody of their three children, A.W., M.W., and J.W., and that Joy would be the "residential parent." Appellant's Appendix at 5. The Agreement identified specific times at which Robert would have visitation, and allowed that he could have additional visitation if the parties agreed. No action was taken relating to this Agreement until April 2004, when Robert filed a Verified Motion for Modification of Child Custody Order. Robert filed this motion when he learned that Joy planned on moving from LaPorte, Indiana, to Schererville, Indiana, roughly forty miles away. 1 In June 2004, Robert filed a Motion for Custody Evaluation, and on July 7, 2004, the trial court conducted a hearing on this motion and reset the matter for September 3, 2004. At the September 3 hearing, the matter was continued and another hearing was held on November 18, 2004. Following the November 18 hearing, the trial court ordered that the parties undergo a custody
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Under current law, an individual who has been awarded custody or visitation time with a child must file a notice of intent to move with the clerk of the court that awarded the custody or visitation and send a copy of the notice to any nonrelocating person who has custody or visitation rights. Ind. Code

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