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Jarrell v. Jarrell

Court of Appeals of Indiana

March 31, 2014

DUSTIN LEE JARRELL, Appellant-Respondent,
v.
BILLIE JO JARRELL, Appellee-Petitioner

Page 1187

APPEAL FROM THE KNOX SUPERIOR COURT. The Honorable Jim R. Osborne, Judge. Cause No. 42D02-1008-DR-66.

ATTORNEYS FOR APPELLANT: ANDREA L. CIOBANU, ALEX BEEMAN, Ciobanu Law, P.C., Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: JONATHAN T. FEAVEL, Vincennes, Indiana.

RILEY, Judge. VAIDIK, C. J. and MAY, J. concur.

OPINION

Page 1188

RILEY, Judge

STATEMENT OF THE CASE

Appellant-Respondent, Dustin Lee Jarrell (Father), appeals the trial court's Order modifying the custody of his minor child, G.J., in favor of Appellee-Petitioner, Billie Jo Jarrell (Mother).

We affirm.

Page 1189

ISSUES

Father raises three issues on appeal, which we restate as the following:

(1) Whether the trial court erred by failing to consider the proper statutory factors following Father's objection to Mother's relocation;
(2) Whether the trial court erred by modifying custody without finding a substantial change in circumstances; and
(3) Whether the trial court erred in concluding that it is in G.J.'s best interests to award physical custody to Mother.

FACTS AND PROCEDURAL HISTORY[1]

On September 6, 2003, Father and Mother were married and established their home in Vincennes, Indiana. Father owns a motorsport retail and repair business, and Mother is a registered nurse. Father has two children and Mother has one child from previous relationships, and on January 7, 2008, Mother gave birth to G.J., the couple's only child together. For the first two years of G.J.'s life, Father was a stay-at-home dad. After almost seven years of marriage, on August 20, 2010, Mother filed a petition to dissolve the marriage. On January 4, 2011, the trial court entered a Decree of Dissolution and adopted the Dissolution Settlement Agreement reached by Father and Mother, which included an arrangement to share joint physical and legal custody of G.J. Per the custody order, Father and Mother alternated physical custody of G.J. on a weekly basis. Because the parents agreed to pay all costs associated with G.J.'s care while in that parent's custody and equally share educational and extra-curricular expenses, no child support order was entered.

In May of 2011, Mother quit her nursing job in Vincennes and relocated to Carterville, Illinois to reside with her fiancé (Fiancé ). Carterville is approximately 180 miles and a three-hour drive from Vincennes. On December 28, 2011, Mother began a new nursing job in Carterville. For nearly two years following Mother's relocation, Father and Mother maintained their alternating custody arrangement, meeting in a city halfway between Vincennes and Carterville to exchange G.J. each week.

On March 18, 2013, Father filed a petition with the trial court requesting modification of the custody order. In his petition, Father stated that G.J. was set to begin kindergarten in August of 2013, and the weekly custody arrangement would " be impossible to perform because of the change of residency" by Mother. (Appellant's App. p. 48). Noting that Mother had failed to provide statutorily required notice prior to moving to Carterville, Father asserted that Mother's relocation " is a substantial and continuing change of circumstances that causes the [trial] [c]ourt's Orders as to the custody, visitation/parenting time and support to be unreasonable and therefore in need of modification." (Appellant's App. pp. 47-48).

On July 31, 2013, the trial court held an evidentiary hearing on Father's modification petition. On this same day, the trial court conducted an in-camera interview of G.J., off the record and outside the presence of parties or counsel. On August 15, 2013, the trial court adopted Mother's Proposed Findings of Fact and Conclusions of Law as its final judgment, maintaining the initial decree of joint legal custody, but

Page 1190

granting sole physical custody to Mother. Father was awarded parenting time from 8:00 P.M. Friday through 6:00 P.M. Sunday for the first three weekends of each month, as well as nearly the entirety of G.J.'s summer break. The trial court concluded:

That after consideration of the testimony of the parties, the information provided to this [c]ourt by the child in the [i]n-[c]amera interview, the exhibits provided to this [c]ourt, and the necessary statutory factors, the [c]ourt determines that the best interests of the child are served most completely through an award of physical custody to [Mother]. The [c]ourt specifically notes that the best interests of the child are served most fully through this award of physical custody as the child will benefit educationally from attentiveness of [Mother] as has been shown to the [c]ourt through testimony and exhibits.

(Appellant's App. p. 73).

Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

In this case, the trial court entered specific Findings of Fact and Conclusions of Law in its Order modifying custody. Pursuant to Indiana Trial Rule 52(A), our court will " not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses." D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind. 2012). Considering only the evidence most favorable to the trial court's judgment and all reasonable inferences derived therefrom, we will find clear error only if the evidence, either directly or by inference, fails to support the ...


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