D.G. v. S.G.

82 N.E.3d 342
CourtIndiana Court of Appeals
DecidedAugust 28, 2017
DocketCourt of Appeals Case No. 32A01-1701-DR-164
StatusPublished
Cited by14 cases

This text of 82 N.E.3d 342 (D.G. v. S.G.) 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
D.G. v. S.G., 82 N.E.3d 342 (Ind. Ct. App. 2017).

Opinion

Bailey, Judge.

Case Summary

The marriage of D.G. (“Mother”) and S.G. (“Father”) was dissolved, they were awarded joint legal and physical custody of their two sons (“Children”), and their marital property was distributed in a purportedly 50/50 split. Mother now appeals, challenging the custody order and the property division. We affirm in part, reverse in part, and remand with instructions.

Issues

Mother presents three issues for review:

I. Whether she was denied due process when the final hearing was ended without the testimony of two anticipated witnesses, her parents;
II. Whether the joint physical custody/parenting time order is clearly erroneous; and
III. Whether the property division is clearly erroneous.

[345]*345Facts and Procedural History

The parties were married in September of 1999. In September of 2014, Father moved out of the marital residence. On January 22, 2015, Mother filed a petition to dissolve the marriage. At that time, Children were aged eleven and seven. They initially remained in the primary physical custody of Mother, who is a critical care flight nurse with a rotating work schedule.

At first, Father would care for Children in the marital residence while Mother worked two shifts per week (one 24-hour shift and one 12-hour shift). Father worked as a graphic designer with regular daytime hours. He was also responsible for maintenance and rent collection with respect to the parties’ five rental houses. Children were involved in multiple sports, including baseball, basketball, and football, some with traveling or All-Star teams. The complicated family schedules were such that the parents welcomed frequent help from both paternal and maternal grandparents (“Grandparents”). Grandparents’ assistance included such things as drop-óff at school, meeting the school bus after school, providing meals, and assisting with homework.

The informal arrangement soured after Mother alleged that she found web-cams that had been installed by Father in the marital residence, moré specifically, in her bedroom. Mother began to rely upon her mother (“Maternal Grandmother”) to stay in the marital home with Children when she worked overnight shifts, as opposed to Father doing so. Father desired more access to Children, and, with the assistance of his father (“Paternal Grandfather”) obtained a home in Children’s school district. Father began to rely upon Paternal Grandfather to regularly meet the school bus at the marital residence and bring Children to Father when his work day ended. It was not always clear who would be awaiting Children. On at least one occasion the younger ■ child was left alone and once, Paternal Grandfather and ■Maternal Grandmother got into a disagreement over who would .take Children after school.

A Guardian Ad Litem (“the GAL”) was appointed on May 29, 2015, As the dissolution action was pending in 2015 and 2016, the GAL made several recommendations to the court and various interim parenting time orders were entered. One preliminary agreed order incorporated the parents’ agreement that, if one parent was working and the other was available, Children would be with the non-working parent. However, the parents also agreed upon a summer break exception, that is, if a parent worked during his or her extended parenting time and a grandparent-was available, the other parent need not be given the right-of-first-refusal of parenting time. Over the course of the interim orders, Father’s parenting time progressed to Guideline-based parenting time plus one overnight during the week. At some point, Mother changed her 12-hour shift to a daytime shift.

The parties reached a partial mediated agreement with respect to some of their property. They agreed that Father would continue to manage the rental properties and collect rents. He would report any gains or losses on his individual income tax return for 2015. They had the rental properties and marital residence appraised, and stipulated to the appraisal values. They also agreed upon the valuation of vehicles and items of personal property. Mother was to retain the marital residence and each party was to retain the vehicle in his or her possession.

The ‘final hearing commenced on September 29, 2015, and continued on January 14 and July 14, 2016. By this juncture, the contested issues involved custody, [346]*346parenting time, and whether, a deviation from the presumptive 50/50 split of marital property was warranted.

Mother’s position was that she should have primary physical custody of Children, and Father should have Children during her work hours and alternate weekends. She requested a 60/40 split of marital assets in her favor, citing significant monetary and sweat-equity contributions by her parents pertinent to- the real estate property acquisitions. Mother asked to be awarded two of the rental properties- as well as the marital residence.

Father’s position was that he should have custody of Children half-time and be awarded half the marital estate. He requested all five of the rental properties. He testified that Mother’s -preference for allowing Maternal Grandmother to provide childcare had caused difficulty with him having the time to which he was entitled. The GAL recommended a 60/40 split of parenting • time,- with Mother having 60% and Father having “parenting guidelines plus one [overnight].” (Tr. Vol. II pg. 212.) She also recommended that, when grandparents were available during an extended school break, the parent exercising parenting time had no obligation to offer the other parent a right-of-first-refusal for work hours.

Children’s therapist also testified, acknowledging the bond between Children and both parents, as well as between Children and Grandparents. She related the eldest child’s expressed desires for a, set schedule and ability to see both parents regularly. She opined that both parents were meeting Children’s emotional needs, but further opined that Children were over-extended by sports activities and needed a mpre balanced schedule.

As the second day of testimony ended, the trial court addressed the attorneys and described the anticipated order on parenting time, which appeared to mirror the GAL’s recommend‡d 40/60 split. Father was to have alternate weekends consisting of Friday, Saturday, and Sunday.. Father was to have a Wednesday overnight when. Mother’s work schedule did not include a weekday. Thus, he was to be assured of having at .least five of fourteen nights. The right-of-first-refusal of parenting time provision was to apply to time blocks of four hours or more and “ancillary provisions of the [Indiana Parenting Time] Guidelines” (hereinafter, “Guidelines”) were to apply. (Tr. Vol. IV, pg. 84.) The parties were to use the services of a parenting time coordinator for two years. The trial court also distributed some of the personal property before adjourning.

Immediately before the final hearing concluded on the third day, Mother testified that her 12-hour work shift had changed. She was working from 6:00 to 6:00 p.m. in Indianapolis and would expect to arrive home around 6:30 p.m. Her 24-hour shift remained a rotating shift.

On December 27, 2016, the trial court issued á decree dissolving the parties’ marriage.

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Bluebook (online)
82 N.E.3d 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dg-v-sg-indctapp-2017.