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Gilbert v. Gilbert

Court of Appeals of Indiana

April 17, 2014

GEOFFREY A. GILBERT, Appellant-Respondent,
MELINDA J. GILBERT, Appellee-Petitioner

APPEAL FROM THE NOBLE SUPERIOR COURT. The Honorable Robert Kirsch, Judge. Cause No. 57D01-1204-DR-7.

ATTORNEYS FOR APPELLANT: BILL D. EBERHARD, Eberhard & Weimer, P.C., LaGrange, Indiana.

ATTORNEYS FOR APPELLEE: LINDSEY A. GROSSNICKLE, Bloom Gates & Whiteleather, LLP, Columbia City, Indiana.

RILEY, Judge. BARNES, J. concurs. ROBB, J. dissents with separate opinion.


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RILEY, Judge


Appellant-Respondent, Geoffrey A. Gilbert (Father), appeals the trial court's Order approving the relocation request of

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Appellee-Petitioner, Melinda J. Gilbert (Mother).[1]

We affirm.


Father raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court abused its discretion by granting Mother's petition to relocate from Albion, Indiana to Goshen, Indiana.

Mother raises one issue on cross-appeal, which we restate as the following: Whether Mother is entitled to an award of appellate attorney's fees because Father filed a frivolous or bad faith appeal.


On September 8, 2001, Father and Mother were married and they established their home in Albion, in Noble County. In the course of their nearly eleven-year marriage, Father and Mother had two children (the Children)--a son born in February of 2004, and a daughter born in January of 2007. Father also has two teenage children from a previous marriage. Father works in Goshen for a company tat constructs mobile homes. Since January of 2012, Mother, who works from home, has been employed by a company headquartered in Grand Rapids, Michigan that sells food service equipment.

In the spring of 2012, Father and Mother decided to separate, and Father moved out of the marital residence. Four months later, on August 23, 2012, the trial court entered a Decree of Dissolution, which incorporated the Mediated Marital Settlement Agreement reached by Father and Mother. Pursuant to the Settlement Agreement, Father and Mother " agreed that it is in the best interests of [the Children]" for the parents to share joint legal custody and for Mother to have primary physical custody. (Appellant's App. p. 9). Father agreed to exercise his parenting time with the Children from Friday through Tuesday on alternating weekends, as well as overnight on alternating Mondays. During the Children's summer scholastic breaks, Father and Mother alternate physical custody on a weekly basis. The Settlement Agreement also provides that Father and Mother may arrange for Father to have parenting time with the Children " [a]t other reasonable times and places." (Appellant's App. p. 9). The trial court did not issue an order for child support.

Both parents are actively involved in the Children's education; they volunteer at school events and chaperone their field trips. The Children participate in a number of different sports and other extracurricular activities. Father coaches their son's baseball, football, and basketball teams, as well as their daughter's t-ball team. For several months after the divorce, Father lived only a few miles from Mother's house, so on the mornings following the Children's overnight stays, Father drove the Children to Mother's house where they would board the school bus.

In the fall of 2012, Mother's then-boyfriend (Fiancé ) moved to Albion to reside with Mother and the Children. Fiancé has a child from a previous marriage who lives in Grand Rapids and spends three weekends each month with Fiancé . By the beginning of 2013, Mother and Fiancé, who were expecting a baby in the spring, realized they needed more space to

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accommodate their family and began searching for a new home. Finding no suitable houses in Albion, Mother selected a newly constructed, five bedroom house in Goshen approximately thirty miles away. Mother entered into an agreement to sell her Albion residence and into another to purchase the home in Goshen, with both deals contingent upon the trial court's approval of the move.

On April 3, 2013, Mother filed notice with the trial court, communicating her intent to relocate from Albion to Goshen. On May 2, 2013, Father filed an objection to Mother's relocation and concurrently filed his Verified Motion for Modification of Custody, Parenting Time, and Child Support, requesting that the trial court award him physical custody. On May 10, 2013, Father filed a motion for the trial court to appoint a guardian ad litem . Concerned that the appointment of a guardian ad litem would unnecessarily delay the hearing, Mother objected, and on May 13, 2013, the trial court denied Father's request. On June 7, 2013, the trial court conducted an evidentiary hearing on the matters of Mother's request to relocate and Father's motion to modify custody. On June 10, 2013, Father filed a motion for the trial court to conduct an in camera interview with their son, who was nine years old at the time. That same day, following Mother's objection based on Father's failure to request the interview prior to the close of the evidence, the trial court denied Father's motion.

The next day, June 11, 2013, the trial court issued its Order approving Mother's proposed relocation and denying Father's motion to modify custody. Specifically, the trial court found that " [Mother] has met her burden of proof that her proposed relocation is made in good faith and for a legitimate reason and [Father] has not met his succeeding burden to show that the proposed relocation is not in the best interest of the parties' [C]hildren." (Appellant's App. p. 5). The trial court affirmed its previous orders concerning the custody, support, and parenting time arrangements with the " hope[] that the parties will be able [to] continue to co-parent and cooperate with each other as they have to date." (Appellant's App. p. 5). On July 11, 2013, Father filed a motion to correct error, contending that the trial court erred in finding that Mother established a legitimate good faith reason for her relocation, which the trial court denied the same day.

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



I. Standard of Review

In this case, the parties did not request, and the trial court did not issue, specific findings of fact or conclusions of law. Accordingly, we review this case under a general judgment standard. L.C. v. T.M., 996 N.E.2d 403, 407 (Ind.Ct.App. 2013). Relying on this standard, we will affirm the trial court if its judgment ...

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