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In re Marriage of Harpenau

Court of Appeals of Indiana

September 12, 2014

IN RE THE MARRIAGE OF TINA M. HARPENAU, Appellant-Petitioner, and ROBIN P. HARPENAU, Appellee-Respondent

APPEAL FROM THE PERRY CIRCUIT COURT. The Honorable Lucy Goffinet, Judge. The Honorable Karen Werner, Magistrate. Cause No. 62C01-1301-DR-44.

ATTORNEY FOR APPELLANT: WALTER R. HAGEDORN II, Law Office of Walter R. Hagedorn II, Tell City, Indiana.

ATTORNEY FOR APPELLEE: JAMES G. TYLER, Tyler Law Office, Tell City, Indiana.

ROBB, Judge. BAKER, J., and KIRSCH, J., concur.

OPINION

Page 343

ROBB, Judge

Case Summary and Issues

When Tina (" Mother" ) and Robin (" Father" ) Harpenau were divorced in August 2013, the parties agreed to joint legal custody of the parties' two minor children with Mother to have primary physical custody subject to Father's parenting time. In October 2013, Mother filed a notice of intent to relocate to Scott County; Father filed a petition to modify custody objecting to the move. The trial court found Mother's proposed relocation was made in good faith and for a legitimate reason but that it was not in the best interests of the children. Accordingly, the trial court granted Father's petition to modify, awarding primary physical custody to Father, granting Mother the same parenting time as Father originally had, and ordering Mother to pay child support. Mother appeals, raising two issues for our review: 1) whether the trial court abused its discretion in granting Father's petition to modify; and 2) whether the trial court abused its discretion in modifying child support. Concluding the trial court did not abuse its discretion in modifying custody due to Mother's proposed move or in modifying child support accordingly, we affirm.

Facts and Procedural History

Mother and Father were married in 2005 and have two children, V., born in 2007, and I., born in 2009. The parties' marriage was dissolved on August 29, 2013, and personal and property issues were settled by a Dissolution of Marriage Settlement Agreement. Relevant to the issues on appeal, the agreement provides:

4. CUSTODY OF CHILD AND PROVISIONS FOR SUPPORT. . . .
a. [Mother] and [Father] shall have joint legal custody of [the children], with [Mother] being primary physical custodian, subject to [Father's] parenting time. The parenting time schedule with the children shall be as follows: . . . [Father's] parenting time during the children's school year shall be each week beginning on Friday at 5:00 o'clock P.M. and ending on Sunday at noon. During the children's summer break, [Mother] and [Father] shall switch the parenting time schedule wherein [Mother's] weekly

Page 344

parenting time will be the same as [Father's] was during the school year . . . .

* * *
c. [Mother] intends on relocating her residence to a location in Floyd County, Indiana. [Father] intends on relocating to another residence in Perry County. [Mother] and [Father] both waive any objection to and consent to the first location of each party mentioned herein without filing a Notice of Intent as required by Indiana law. The waiver and consent to the first relocation shall not be construed as a waiver to any subsequent relocation made by the parties and the parties acknowledge that they shall be required to follow Indiana law prior to relocating their residence any time after the first relocation.
d. [Father] shall not be required to pay weekly child support to [Mother] at this time, which is a deviation from the Indiana Child Support Guidelines. [Mother] and [Father] shall each pay one-half of all expenses of the children for extracurricular activities, school fees, books, and lunches and clothes. The payment of these expenses shall be intended to be child support. . . . [Mother] and [Father] each believe it is in the best interests of the children to handle the support of the children in this method at the present time.

Appellant's Appendix at 17-18.

On October 4, 2013, Mother filed a notice of intent to move to a residence in Scott County, Indiana. In her notice, she stated that she " is moving to establish a new residence and cohabit with Mr. Eric J. Payne, who owns the residence to which [she] and children will be moving. The residence is within a closer proximity to [Mother's] place of work than her current residence." Id. at 24. In response, Father filed a petition to modify, objecting to the move and requesting the custody arrangement be modified to grant him primary physical custody of the children with Mother to have appropriate parenting time.

At the hearing on Father's motion, Father testified extensively about his research into the various school districts in and around his home in Perry County, Floyd County, and Mother's proposed home in Scott County. He had consented in the decree to Mother's move to Floyd County because he believed the schools were good and the driving distances between their homes, work, and schools were reasonable. He objected to her move to Scott County because he believed the schools were inferior to the schools in both Perry and Floyd Counties; his drive time to the children and to their schools would increase; and he had concerns about the level of criminal activity in and around the proposed home and schools in Scott County. There was evidence of numerous family members on both Mother's and Father's side who reside in Perry County, whereas there are no family members in Scott County.[1] At the conclusion of the hearing, the trial court announced that it was granting Father's petition to modify and later issued an order formalizing its decision:

1. Pursuant to I.C. ยง 31-17-2.2-5(c), [Mother] has proved that her proposed relocation to Scott County, Indiana is made in good ...

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