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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.

FILED
Dec 29 2010, 9:39 am
of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: DAVID P. MATSEY Millbranth & Bush Valparaiso, Indiana

CLERK

IN THE COURT OF APPEALS OF INDIANA
VILMA (STRUSS) PAPA, Appellant-Petitioner, vs. NICHOLAS STRUSS, Appellee-Respondent. ) ) ) ) ) ) ) ) ) )

No. 64A03-1008-DR-428

APPEAL FROM THE PORTER SUPERIOR COURT The Honorable William E. Alexa, Special Judge Cause No. 64D02-0211-DR-9544

December 29, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

Case Summary Vilma (Struss) Papa ("Mother") filed a notice of intent to relocate to the State of Washington with her minor son, and Nicholas Struss ("Father") responded with a motion to modify custody and requested a hearing. At the beginning of the hearing, the trial court realized that Mother had filed a notice of intent to relocate the year before which another judge had denied and thus denied Mother's notice of intent to relocate without finishing the hearing. Mother contends this was error. When a trial court considers a notice of intent to relocate when a nonrelocating individual, such as Father, files a motion to modify custody, the court is required to consider the factors listed in Indiana Code section 31-17-2.2-1(b) and to receive evidence on those factors. Because the trial court did not do so here, we reverse the trial court and remand for such a hearing. Facts and Procedural History Mother and Father have two children, only one of which is still a minor, J.S. When Mother and Father divorced in 2003, Mother was awarded physical custody of J.S. At some point, Mother got remarried to Dennis Papa. In 2009, Mother filed a notice of intent to relocate. Another judge in Porter Superior Court held a hearing, interviewed J.S. in camera, and issued findings of fact and conclusions of law denying Mother's notice of intent to relocate. On June 17, 2010, Mother filed a second notice of intent to relocate. In this notice, Mother alleged that she intended to move to the State of Washington on September 1, 2010, because her husband, Dennis Papa, is employed as a microbiologist 2

with the State of Washington; her husband has a home in Mazama, Washington; the school system there is one of the best in the entire state; and "since the prior notice of intent to relocate, there has been a change of circumstances in that my son, [J.S.], is now thirteen (13) years of age, and has expressed a desire to relocate to the State of Washington with me." Appellant's App. p. 3. Father filed an objection to Mother's notice of intent to relocate and requested the court to set the matter "for a full evidentiary hearing." Id. at 6. Father sought a

temporary and permanent order restraining Mother from relocating to the State of Washington with the parties' child. A few days later, Father filed a petition for

modification of support and custody. He alleged that "[i]n the event Mother relocates without the parties' child, it is in the best interest of the minor child that Respondent/Father, be awarded custody and a reasonable amount of support be paid to [Father] for the benefit of the parties' child." Id. at 10. Father again asked that the matter be set for a hearing and, "after the presentation of evidence," that the trial court grant his petition and award him a reasonable attorney's fee.1 Id. On July 23, 2010, the parties and their counsel appeared before the trial court for a hearing on Mother's notice of intent to relocate. Each party also filed a motion for findings of fact and conclusions of law. The trial court opened the hearing as follows: I notice this same issue was litigated . . . back in September of last year findings of fact and conclusions of law were filed after a lengthy hearing, if you look at it, and this petition appears to want to litigate the same facts.

There are two ways to object to a proposed relocation under the relocation chapter: a motion to modify a custody order, Ind. Code

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