Moving and Quiting
The Indiana Supreme Court yesterday released a decision in a divorce case (Julie Marie Bojrab v. George David Bojrab), that covers 2 contentious issues in divorce cases. First is the dilemma court find parents in when one wants to move with the kids to some distant local, and the other parent cries foul, noting that their relationship with the kids will be significantly curtailed. Generally, courts in a divorce do not have the power to limit a parent from moving about the country as they see fit, but many judges see the negative impact on the kids and the “abandoned” parent to be too severe to tolerate. Some courts look at the purpose of the move, and will basically say the parent can go, but the kids stay if the custodial parent does not have a real good reason to relocate. The Supreme Court does not give much guidance in making this decision, but it does approve of a clause that I imagine we will be seeing in more decrees, now that we know its legal:
We agree that a trial court may not prospectively order an automatic change of custody in the event of any significant future relocation by the wife. The decree does contain language ordering that, in the event the wife unilaterally decides to relocate outside Allen County, Indiana, “custody of the children shall be granted to the [husband].” Appellant’s Appendix at 164. This language is inconsistent with the requirements of the custody modification statute, Indiana Code § 31-17-2-21. See footnote Immediately preceding such language declaring a conditional future change of custody, however, the decree states: “the grant of custody of the parties’ minor children is subject to maintaining their residence in Allen County, Indiana.” Appellant’s Appendix at 164. There is a significant difference between the two phrases. One purports to automatically change custody upon the happening of a future event; the other declares that the present award of custody is conditioned upon the continuation of the children’s place of residence. While the automatic future custody modification violates the custody modification statute, the conditional determination of present custody does not. The latter is a determination of present custody under carefully designated conditions. Upon a violation of said conditions by the wife as custodial parent, the basis for the custody order is undermined, and the husband may seek a change in custody pursuant to the custody modification statute.
The second perennial issue comes up in child support disputes. Once support is set, it can be adjusted from time to time over the kids’ minority, based on changes in the parties incomes, and various other factors. Normally, people make their career decisions various reasons, but when a party paying support quits a job to take a lower paying job, many times the supported parent will cry foul when the court is asked to lower the child support. Courts look to the intent of the transition, and generally give parents the ability to make this choice so long as the intent is not specifically to reduce their child support obligation. But there is no guarantee:
Here the trial court found that the husband voluntarily left one position for another and that he could have remained at his prior position, that he would have taken financial measures to maintain the standard of living for his wife and children during the transition, and that he had the capacity to finance the support and maintenance during this time. While legitimate reasons may exist for a parent to leave one position and take a lower paying position other than to avoid child support obligations, this is a matter entrusted to the trial court and will be reversed only for abuse of discretion. See Elliott v. Elliott, 634 N.E.2d 1345, 1348-49 (Ind. Ct. App. 1994); Ullery v. Ullery, 605 N.E.2d 214, 215 (Ind. Ct. App. 1992). Considering the facts most favorable to the judgment without reassessing credibility or reweighing the evidence, we cannot say that the trial court abused its discretion in the present case.
Another thing I noted in this case was the time line: The divorce was filed on January 10, 2000. The trial court issued its final order on March 28, 2002, the Court of Appeals rendered its decision on the dispute on April 16, 2003, and the Supreme Court ended the case with its decision on June 28, 2004. Not the record for a drawn out divorce, but this lady waited a long time to learn she could not relocate her kids.
