Bryan E. Mitten v. Cynthia L. Mitten

44 N.E.3d 695, 2015 Ind. App. LEXIS 627, 2015 WL 5317242
CourtIndiana Court of Appeals
DecidedSeptember 14, 2015
Docket11A01-1501-DR-8
StatusPublished
Cited by8 cases

This text of 44 N.E.3d 695 (Bryan E. Mitten v. Cynthia L. Mitten) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryan E. Mitten v. Cynthia L. Mitten, 44 N.E.3d 695, 2015 Ind. App. LEXIS 627, 2015 WL 5317242 (Ind. Ct. App. 2015).

Opinion

KIRSCH, Judge.

[1] Bryan E. Mitten (“Father”) appeals the trial court’s decree of dissolution (“Decree”) that dissolved his marriage to Cynthia L.. Mitten (“Mother”), raising five issues that we consolidate and restate as:

*697 I. Whether the trial court’s determination of Father’s child support obligation was an abuse of discretion; and
II. Whether the trial court abused its discretion in its division of the parties’ debts.

[2] We affirm.

Facts and Procedural History

[B] Father and Mother were married in June 2005, 1 and, during the marriage, Father adopted Mother’s biological child (“Child”), born in June 2000. On July 16, 2013, Father petitioned for dissolution of their marriage. On or near the time of filing, Father moved out of the marital residence, and Mother continued to reside in the home with Child. No provisional hearing was requested or held, but during the pendency of the action, Father paid $6,655.87 toward the mortgage on the marital residence, as well as utilities and property taxes on it.

[4] At the March 4, 2014 final hearing, the parties stipulated to the trial court that Mother would have primary physical custody of Child, and Father would be entitled to overnight visitation with Child in accordance with Parenting Time Guidelines. The parties also submitted lists of personal property that each would retain, including each party taking his or her vehicle and the associated debt. Tr. at 5. Because Father’s debt on his truck was greater, the parties agreed that Father would retain his 401(k) pension. Id. at 6.

[5] At the hearing, the parties testified to their respective incomes. Mother testified that, during the marriage, Father lost his job and the available health insurance for Child, so she left her job and took another that offered health insurance. Id. at 54. She testified that she paid $88.52 per week for Child’s health, dental, and vision coverage. With regard to visitation, Mother testified that Father exercised very little parenting time with Child, who was in eighth grade at the time of the hearing. She observed that Child did not desire to exercise visitation, with Father, stating that Child’s diagnosed ADHD condition contributed to Child having difficulty with transitions, but that “in time” she believed visitation and relationship with Father would improve. Id. at 49. She testified that she was in favor of Father and Child having a relationship and that she encouraged phone calls and visitation. Father’s testimony acknowledged that Child did not desire to exercise visitation, but Father testified that, out of concern that it might exacerbate Child’s ADHD conditions, Father intentionally had not “pushed” Child to stay with him. Id. at 27. Between the parties’ separation in June 2013 and the final hearing in March 2014, Father had not exercised any overnight visitation.

[6] The trial court issued , findings and conclusions that calculated child support in the amount of $235.00 per week. The trial court’s child support calculation credited Mother with paying $88.52 per week in health insurance premiums for Child. With regard to Father’s visitation and any credit for overnight visitation, the trial court stated,

The Court finds the parties agreed [Father’s] parenting time would be pursuant to the Indiana Parenting Time Guidelines. There was testimony that [Father] has not had any overnight parenting time with the minor child since the separation of the parties, or that overnight parenting times were minimal. In calculating child support, the Court *698 -has taken this testimony into account, even though the parties have agreed parenting time with the child is to be in accordance with the Indiana Parenting Time Guidelines. [Note: Should [Father] in the future, actually have parenting time overnights with the child, ie. every other weekend, then the' Court would entertain a[] jointly filed modification agreement or motion by [Father] to modify child support.]

Appellant’s App. at 12 (emphasis in original). The trial court ordered that the $235.00 per week support obligation was retroactive to the first Friday following the date the petition was filed, which resulted in an arrearage of $13,360.00. However, the Decree applied a credit of $2,216.40 against that arrearage; the credit represented 33.3% of the payments that Father voluntarily made during the pendency of the matter toward the mortgage and utilities on the marital residence.

[7] The trial court determined that “neither party has rebutted the presumption” of equal division of the marital estate. Id. at 23. In dividing property, the Decree recognized that the parties had agreed to division of certain assets and debts, including that associated with their respective vehicles and other miscellaneous items of personal property, which the court did not expressly value because the parties had not provided values to the court. As is relevant to this appeal, Mother received in the property division, the net proceeds of the sale of the marital residence, which were" $1,724.30, and Father received his 401(k). The trial court ordered Father to pay the following debts: (1) $6,836.99 One Main Debt; (2) $1,912.19 Fifth Third credit card; and (3) $4,117.39 Capital One credit card. It ordered the parties to split equally the following debts: (1) $1,000.00 loan repayment to Mother’s mother; (2) approximately $3,533.00 in bills to St. Vincent Hospital; and (3) $346.00 to Northside Anesthesia.

[8] Father filed a Motion to Reconsider or In the Alternative Motion to Correct Errors, asserting that the trial court erred in the following respects: (1) in its division of debts; (2) in making the child support obligation retroactive to the date of filing; (3) in giving Mother a credit of $88.52 per week for health insurance costs; (4) in failing to give Father credit "for overnight visitations; and (5) in crediting Father $2,216.40 toward his support arrearage obligation, which represented 33.3% of the total amounts he paid during the pendency of the action. Following a hearing, the trial court determined it had committed error in its prior finding that neither party had rebutted the presumptive equal division of the marital estate, stating, “[A]n equal division is not just and reasonable in light of [Mother’s] contribution [to the acquisition of the marital home] ... and that [Mother] did rebut the presumption. of equal division.” Id. at 49. The trial court did not, however, modify its prior support order or its division of assets and debts, thereby denying Father’s requests. Father now appeals.

Discussion and Decision

[9] The trial court’s decision on a motion to correct error comes to an appellate court cloaked in a presumption of correctness. Page v. Page, 849 N.E.2d 769, 771 (Ind.Ct.App.2006). We review the denial of a motion to correct error for an abuse of discretion. Lovold v. Ellis, 988 N.E.2d 1144, 1149-50 (Ind.Ct.App.2013).

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44 N.E.3d 695, 2015 Ind. App. LEXIS 627, 2015 WL 5317242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryan-e-mitten-v-cynthia-l-mitten-indctapp-2015.