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Myers v. Myers

Court of Appeals of Indiana

July 15, 2014

JACQUELINE MYERS, Appellant/Respondent,
v.
MARK MYERS, Appellee/Petitioner

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Thomas J. Carroll, Judge, The Honorable Christopher Haile, Magistrate. Cause No. 49D06-0507-DR-26923.

ATTORNEYS FOR APPELLANT: LEAH R. BURRIS, Zionsville, Indiana; DONNA JAMESON, Greenwood, Indiana.

ATTORNEY FOR APPELLEE: KEVIN HOOVER, Hill Fulwider, Indianapolis, Indiana.

ATTORNEYS FOR GUARDIAN A.D. LITEM: DEBORAH M. AGARD, DANIEL W. KIEHL, Law Office of Deborah M. Agard, Indianapolis, Indiana.

VAIDIK, Chief Judge. NAJAM, J., and BROWN, J., concur.

OPINION

Page 479

VAIDIK, Chief Judge

Case Summary

Jacqueline Myers (" Mother" ) filed a notice of intent to relocate from Indiana to

Page 480

Texas with her daughter, fourteen-year-old H.M. Mark Myers (" Father" ) objected and filed a motion to prevent Mother's relocation with H.M., which the trial court granted following an evidentiary hearing. Mother now appeals. She contends that because H.M. is not a child of the marriage, Father could not object to her relocation and the trial court should not have entertained issues related to H.M.'s custody. She also argues that the court erred by denying her relocation request.

We conclude that the presumption that H.M. is a child of the marriage has not been rebutted; thus, H.M.'s relocation was properly before the court upon Father's valid objection. We also conclude that the trial court did not err in finding that Mother did not meet her burden of proof in seeking to relocate. We do find, however, that the trial court erred in ordering that Father would receive automatic physical custody of H.M. if Mother moved to Texas. We affirm in part and reverse in part.

Facts and Procedural History

Mother and Father have six children.[1] H.M., born in 2000, is their youngest child. The parties divorced in 2006. During the dissolution proceedings, Mother informed Father that he was not H.M.'s biological father.

In the decree of dissolution, the Marion Superior Court discussed H.M.'s paternity:

Father is not [H.M.'s] biological [father], but is the product of an affair Mother had while she was in Paraguay. However, the parties have always held out Father to be [H.M.'s] father and Father is identified as such on [H.M.'s] birth certificate.
* * * *
With respect to [H.M.], the court has reservations about its subject[-]matter jurisdiction to enter orders. It is clear that Father has failed to establish that Mother is unfit such that he may be awarded third[-]party custody. It is also clear that Father has acted as a parent to H.M. and is the only father known to the child. Indeed Mother testified that Father should have guideline parenting time with [H.M.] . . . . [T]he Court finds that treating H.M. different[ly] from [the other children] for parenting time would not be in her best interests. The Court therefore finds that Father should have [] [p]arenting [t]ime with [H.M.] . . . .
* * * *
In making a custody determination between a natural parent and a non-parent, such as the situation in this case with respect to [H.M.], the court presumes the parent has a superior right to custody, but the non-parent can overcome this presumption by showing . . . the unfitness of the natural parent.
* * * *
Each parent shall have Indiana Parenting Time with the children not in their custody, including [H.M.].

Appellant's App. p. 15, 19, 22 (formatting altered). The parties did not appeal this order. Six years passed, during which time Father continued to act as H.M.'s parent without objection from Mother.

In 2012 Father filed a motion to modify custody and child support. [2] The trial court appointed a guardian ad litem (GAL) to represent the interests of H.M., now a teenager. Father's modification petition

Page 481

was granted with respect to the parties' son M.M., but not H.M. See id. at 8 (CCS entry noting that " Father shall have sole legal and primary physical custody of [the parties' child] [M.M] . . . ." ). H.M. continued to live primarily with Mother. Mother was also ordered to pay Father child support at this time. Mother did not challenge Father's continued right to exercise parenting time with H.M. during this new round of legal proceedings.

Just a few months later, Mother filed notice of her intent to relocate to Texas. Id. at 10 (CCS). Father and the GAL filed objections. Id. The trial court held a ...


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