 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
In re Marriage of Robert Mehl9/25/1998
Beeson v. Christian, 583 N.E.2d 783 (Ind. Ct. App. 1991) in which this court interpreted IC 31-1- 11.5-21.1. In Beeson, when the mother temporarily moved her residence to London, England, the trial court permitted the child to remain in her custody despite the father's request to name him the primary custodian. Id. at 786. The following year, the mother petitioned to extend the order alleging her current husband had received an extension of his term in London. The father objected and again requested a change in custody and establishment of visitation privileges. The mother subsequently filed a petition for an increase in child support and a change in visitation. Id. Following a hearing, the trial court granted the mother's petition to extend the relocation order and then awarded the mother attorney's fees despite the lack of evidence concerning extreme hardship. The father appealed, arguing the attorney fee award was unjustified under the applicable statute.
Our court agreed, reasoning that " he fact the trial court reviewed the issues of modification of custody and visitation, which ordinarily allow discretionary award of attorney's fees, does not change the gravamen of the action here." Id. at 790. We also observed that the relevant statute expressly recognizes that custody and visitation issues will necessarily arise when a custodial parent petitions to relocate. Id. In reversing the award, our court held that review of custody, visitation, and support under IC § 31-1-11.5-21.1 does not open the door to the discretionary attorney fee provisions of the general dissolution statutes. Id.
Mother attempts to distinguish Beeson from the present case, arguing that the gravamen of this case is not her relocation to North Carolina but Father's "unsuccessful attempt, at all costs, to obtain a modification of custody." We recognize that litigation in this case was protracted and costly, encompassing discovery in three states. Nevertheless, in enacting the attorney fee provision of IC 31-1-11.5- 21.1(c), the legislature did not make an exception for cases involving zealous advocacy.
Mother also observes that much of the litigation related to her alleged financial and emotional instability rather than to her relocation. When modification of custody is sought because of an intended relocation, the statute requires the court to take into account the distance involved in the proposed change of residence and the hardship and expense involved for the non-custodial parent in exercising visitation rights. However, this statute is construed in conjunction with other statutes requiring a trial court to consider "all relevant factors" when determining whether modification of custody would be in a child's best interests. See Ind. Code §§ 31-1-11.5-22(d) (Supp. 1994) and 31-1-11.5-21(a) (Supp. 1994); see also, e.g., Beeson, 583 N.E.2d at 788 (psychologist performed custody evaluation administering psychological tests to father and his present wife and to mother and her present husband).
The present action was initiated by Mother's petition to relocate. Father filed his petition to modify custody seventeen days after Mother filed her petition. He named Mother's move and her travel schedule associated with her work as two substantial changes warranting a modification of custody. Father's other filing, his petition for contempt, related to his lack of visitation as the result of Mother's move to North Carolina. The grandparents' petition for visitation was also related to Mother's relocation. Accordingly, we hold that IC 31-1- 11.5-21.1 controls this action and that the trial court was permitted to award attorney's fees only upon a finding of "extreme hardship."
Our analysis doe
Page 1 2 3 Indiana Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|