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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: KIMBERLY A. JACKSON Indianapolis, Indiana

FILED
Dec 23 2009, 9:17 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF G.M., Appellant-Petitioner, vs. C.M., Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) )

No. 35A04-0909-CV-523

APPEAL FROM THE HUNTINGTON CIRCUIT COURT The Honorable Thomas M. Hakes, Judge Cause No. 35C01-0610-DR-599

December 23, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

G.M. ("Father") appeals the trial courts grant of a petition for modification of child custody filed by C.M. ("Mother") regarding their children, Z.M. and K.M. Father raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by increasing Mothers parenting time; and Whether the trial court erred by ordering the Mother to pay child support to Father, the custodial parent.

II.

We reverse and remand. The relevant facts follow. During their marriage, Mother and Father had a son, Z.M., who was born on January 14, 1999, and a daughter, K.M., who was born on November 2, 2002. On January 30, 2007, the trial court entered a decree of dissolution, which awarded Father the custody and control of Z.M. and K.M. The trial court granted Mother parenting time consistent with the Indiana Parenting Time Guidelines. The trial court ordered Mother to pay $62.85 per week in child support. The trial court ordered Father to pay "the first $726.96 of all uninsured medical, surgical, hospital, psychological, dental, optical and prescription drug expenses rendered and provided to or for the benefit of" Z.M. and K.M., and that "[a]ll remaining uninsured expenses shall be divided between the parties with [Father] paying 80% and [Mother] paying 20%." Appellants Appendix at 15. At the time of the dissolution, Mother and Father were residents of Huntington County. On February 26, 2009, Father filed a Verified Notice of Intent to Relocate to Seymour, Indiana, which is 157 miles or approximately two and a half hours from 2

Huntington County. Father stated that Mothers current parenting time with the children consisted of every other weekend, Wednesdays through the week, and all scheduled parenting time in accordance with the Indiana Parenting Time Guidelines. Mother filed an Objection to Relocation and asked that the trial court restrain the relocation of the children and that she be granted full custody of the children. Mother also filed a Verified Petition for Change of Custody and a Motion for In Camera Interview. children. On May 29, 2009, the trial court approved Fathers move to Seymour and entered the following order: The court orders visits as per the Indiana Parenting Time Guidelines (including at a minimum, every other weekend) with the following modifications: 1. 2. [Mother] shall have all of Spring break. [Mother] shall have summer visits to begin the weekend after school ends to five (5) days prior to school beginning. [Mother] shall have all of Christmas break with the exception that Christmas day, Christmas eve and the day after Christmas (taken as a three (3) day period) shall alternate between the parties. The trial court conducted a hearing and in camera interviews with the

3.

Id. at 11. The trial court also ordered Father to file a proposed child support worksheet. On June 4, 2009, Father submitted a child support worksheet and filed a motion to reconsider the trial courts order "with respect to the Summer and Christmas vacation

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Order." Id. at 35. On June 8, 2009, the trial court entered an Order Modifying Child Support, which stated: The Court, on the issue of support finds: 1. That the visitation granted to the non-custodial parent is in the best interest of the children as it allows the children to be around the natural mother even though the children now reside two and one-half hours from their mother. That there is a great disparity between the income of the father and that of the mother. That the income difference and the visitation of the children with the non-custodial parents [sic] produces a support payment that would be from custodial to non-custodial parent. That the support figure is based upon the needs of the children. That all other parts of the Order are reasonable and in the best interests of the children.

2.

3.

4. 5.

It is Ordered that the Motion to Reconsider is denied and Ordered that child support shall be paid by the father to the mother in the sum of $85.62 per week commencing June 5, 2009. Id. at 12. On July 1, 2009, Father filed a motion to correct error, which the trial court denied. Before addressing Fathers arguments, we note that Mother did not file an appellees brief. When an appellee fails to submit a brief, we do not undertake the burden of developing arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was established so that we might be 4

relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002). I. The first issue is whether the trial court abused its discretion by increasing Mothers parenting time. In all parenting time controversies, courts are required to give foremost consideration to the best interests of the child. In re Paternity of G.R.G., 829 N.E.2d 114, 122 (Ind. Ct. App. 2005). When reviewing the trial courts resolution of a parenting time issue, we reverse only when the trial court abused its discretion. Id. If the record reveals a rational basis for the trial courts determination, there is no abuse of discretion. Id. We will not reweigh evidence or reassess the credibility of witnesses. Id. The Ind. Parenting Time Guidelines provide that "[t]here is a presumption that the Indiana Parenting Time Guidelines are applicable in all cases covered by these guidelines." Ind. Parenting Time Guidelines, Scope of Application,

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