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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
Oct 31 2008, 9:42 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: CHARLES R. WAGGONER McConnell Finnerty Waggoner North Vernon, Indiana

ATTORNEY FOR APPELLEE: BRIAN J. BELDING Rogers & Belding North Vernon, Indiana

IN THE COURT OF APPEALS OF INDIANA
WENDY LYN CARR, Appellant-Respondent, vs. JEFFREY SCOTT REAGAN, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 40A01-0806-CV-257

APPEAL FROM THE JENNINGS SUPERIOR COURT The Honorable James Funke, Jr., Judge Cause No. 40D01-0106-DR-122

October 31, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Wendy Lyn Carr ("Mother") appeals the trial court's grant of a motion filed by Jeffrey Scott Reagan ("Father") to modify custody of the parties' minor child, J.R. Mother raises two issues, which we consolidate and restate as whether the trial court abused its discretion by granting Father's motion based on Mother's intent to relocate with the child. We affirm. The relevant facts follow. Mother and Father were married in April 2000 and divorced on October 5, 2001. Pursuant to the divorce decree, Mother was awarded custody of the parties' child J.R., born on August 2, 1999, and Father was awarded visitation in accordance with the Indiana Parenting Time Guidelines. Mother then lived in Bartholomew County, while Father lived in Jennings County. On February 11, 2008, without informing Father, Mother reported for work at a new job in Massachusetts, and, that same day, her attorney filed her verified notice of intention to relocate there. In response, Father filed a verified motion for order

restraining removal of child from the jurisdiction, an emergency petition for temporary custody of J.R., and a petition to modify custody. After a hearing on March 13, 2008, the trial court granted the restraining order as well as temporary custody of J.R. to Father. On May 2, 2008, the trial court held an evidentiary hearing on Father's motion to modify custody. After the hearing, the trial court granted Father's motion, finding that Mother had proved that the relocation was made in good faith and for a legitimate reason, but that it was in the best interests of J.R. that custody be changed to Father. In particular, the trial court found that the distance of Mother's relocation was significant, and that: 2

[Mother's] family is not close knit. [Father's] entire family and his new wife's family are all located within 50 miles and they are relatively close. [J.R.] has no relatives close in age in Massachusetts but does in Indiana. ***** [Mother] decided to move 950 miles away for a better job. This was done without thinking what effect this may have on her child and the child's father. Most of [J.R.'s] relatives that she sees on a regular basis live in Indiana. This is the main factor in this Court[`]s decision. Appellant's Appendix at 7. The issue is whether the trial court abused its discretion by granting Father's motion based on Mother's intent to relocate with the child. The modification of a custody order lies within the sound discretion of the trial court. Spencer v. Spencer, 684 N.E.2d 500, 501 (Ind. Ct. App. 1997), reh'g denied. "We review custody modifications for abuse of discretion, with a `preference for granting latitude and deference to our trial judges in family law matters.'" Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). Judgments in custody matters usually turn on essentially factual determinations and will be set aside only when they are "clearly erroneous." Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). We will not reverse the trial court's judgment if any evidence or legitimate inferences support the trial court's judgment. Id. at 1257-58. "The concern for finality in custody matters reinforces this doctrine." Id. at 1258. Upon appeal, it is not enough that the evidence might have supported some other conclusion; instead, before there is a basis for reversal, the evidence must positively require the other conclusion. Bettencourt v. Ford, 822 N.E.2d 989, 997 (Ind. Ct. App. 2005). 3

In general, an initial child custody order is determined "in accordance with the best interests of the child." Baxendale, 878 N.E.2d at 1254 (quoting Ind. Code

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