Vaidik, C.J.
Case Summary
Casie N. Wheeler (“Mother”) and William Jesse Hinshaw (“Father”) shared joint legal custody of their young son (i.e., authority and responsibility for the major decisions concerning their son’s upbringing, including his education, health care, and religious training). However, after Mother filed a notice of intent to relocate and Father objected, the trial court issued an order that, among other things, awarded sole legal custody to Father. Mother appeals, arguing that the parties did not raise the issue of legal custody and that the modification was therefore improper. Father acknowledges that he did not expressly request a change in legal custody but contends that, under Indiana’s parental-relocation statutes, Ind. Code ch. 31-17-2.2, legal custody is placed at issue any time one parent files a notice of intent to relocate and the other parent objects. We disagree with Father’s reading of the statutes, and because he did not otherwise put Mother on notice that he was seeking a change in legal custody, we reverse the modification.
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For his part, Father does not dispute that the modification of custody is improper if the issue is not raised by the parties, nor does he dispute that he never expressly asked the trial court, in either his filings with the court or at the hearing, to modify legal custody. Rather, he argues that, pursuant to Indiana’s relocation statutes, Ind. Code ch. 31-17-2.2, legal custody was “automatically at issue” once he requested a hearing regarding Mother’s notice of intent to relocate. Appellee’s Br. p. 6. Mother disagrees with Father’s reading of the relocation statutes. Statutory construction is a matter of law that we review de novo. Edmonds v. State, 100 N.E.3d 258, 261 (Ind. 2018).
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We think Father misreads the opening phrase “Upon motion of a party[.]” Father apparently believes that the “motion” referred to in that phrase is a motion or request for a hearing, so that “the court shall set the matter for a hearing to review and modify, if appropriate, a custody order” any time a parent asks for a hearing on another parent’s notice of intent to relocate. See id. at 11 (Father arguing that “the statute specifically says that after a party files a motion for hearing that a modification of custody is a potential consequence or result”). But the statute does not contemplate a generic “motion” or “request” for a hearing regarding a proposed relocation. As our Supreme Court has explained, what Section 31-17-2.2-1(b) contemplates, and the “motion” to which it refers, is a motion to modify an existing custody order (or parenting time order, or grandparent visitation order, or child support order). See Baxendale v. Raich, 878 N.E.2d 1252, 1256 n.5 (Ind. 2008). [Footnote omitted.] So, for example, if a parent files a motion to modify the existing physical-custody order, then “the court shall set the matter for a hearing to review and modify, if appropriate, [the physical-custody order.]” If a parent files a motion to modify the existing legal- custody order, then “the court shall set the matter for a hearing to review and modify, if appropriate, [the legal-custody order.]” If, on the other hand, a parent files only a motion to modify the existing child-support order, then “the court shall set the matter for a hearing to review and modify, if appropriate, [the child-support order]” without concerning itself with physical or legal custody. In short, the requests of the parties frame the issues for the hearing, which may or may not include the issue of legal custody.
To be sure, physical custody and/or parenting time will be at issue virtually any time a parent is looking to move a significant distance. But the same is not necessarily true of legal custody. Physical distance does not prevent parents, especially given today’s technology, from communicating effectively about education, health care, religion, and other aspects of a child’s upbringing. And for this reason a parent who wants a change in legal custody must ask for one. If Father had done so in this case, it is entirely possible that Mother would have presented significant additional evidence relevant to the specific issue of legal custody.
Instead, after Mother filed her notice of intent to relocate, Father filed a “Verified Objection to Petitioner’s Notice of Intent to Relocate and Petition to Modify Child Support.” In that filing, Father asked the trial court to (1) modify child support, (2) prohibit Mother from relocating the child while the matter was pending, (3) deny Mother’s proposed relocation, (4) award him “physical custody” “[s]hould Mother decide to move to Ft. Wayne,” and (5) “set this matter for hearing[.]” Appellant’s App. Vol. II pp. 43-44. Father specifically requested a change in “physical custody,” thereby putting Mother on notice that physical custody would be at issue at the hearing. If he also wanted a change in legal custody, he should have said so, either in his filing or at the subsequent hearing. He did not. The term “legal custody” was used at the hearing, but only in the context of Father’s request to have Mother found in contempt for allegedly violating the existing legal-custody order. And while evidence was presented that would have been relevant if legal custody had been placed at issue (e.g., evidence of the parties’ communication), that evidence was separately relevant to the main issue before the court: whether to allow Mother to move W.H. to New Haven. As such, it cannot be said that the issue of legal custody was tried by consent pursuant to Indiana Trial Rule 15(B), see Bailey, 7 N.E.3d at 344, and Father makes no such argument on appeal. For these reasons, and because Indiana Code section 31-17-2.2-1 does not place legal custody at issue any time there is a hearing regarding a proposed relocation, legal custody was not at issue at the hearing, and the trial court erred by ordering the modification.
Reversed.
Mathias, J., concurs.
Crone, J., dissents with separate opinion
Crone, Judge, dissenting.
I respectfully disagree with the majority’s interpretation of Indiana Code Section 31-17-2.2-1(b). It is important to recognize not only what a statute says, but also what it does not say. In re Estate of Jackson, 938 N.E.2d 1200, 1207 (Ind. Ct. App. 2010), trans. denied (2011). The statute does not require the party who moves for a hearing to “frame[] the issue(s) for the hearing,” slip op. at 7, nor does it limit the issues that a trial court may adjudicate at the hearing. Indeed, the statute authorizes a court to modify a custody order, a parenting time order, or a child support order “if appropriate[.]” Ind. Code § 31-17-2.2- 1(b). A court must “take into account” the same six considerations with respect to all of those orders, and all of those considerations “affect[] the best interest of the child.” [Footnote omitted.] Id. In sum, the statute itself puts parties on notice that custody (both legal and physical), parenting time, and child support are always at issue whenever a court holds a hearing on a party’s notice of intent to move. Unless the effects of a party’s relocation are de minimis, a relocation will upset the existing balance of custody, parenting time, and child support arrangements to some degree; the legislature has given trial courts the discretion to rebalance them “if appropriate,” based on the evidence presented at the hearing and unfettered by the contents of a party’s motion for the hearing [Footnote omitted.]
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