MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 28 2018, 9:17 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE R. Lee Money Michael Cheerva Greenwood, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Elizabeth Ann McQuinn, February 28, 2018 Appellant-Petitioner, Court of Appeals Case No. 29A05-1707-DR-1637 v. Appeal from the Hamilton Superior Court Michael Todd McQuinn, The Honorable William J. Hughes, Appellee-Respondent Judge The Honorable William P. Greenaway, Special Judge Trial Court Cause No. 29D03-0904-DR-543
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 1 of 28 [1] This appeal is the latest chapter in the acrimonious and virtually constant
litigation that has ensued following the 2010 dissolution of the marriage of
Elizabeth McQuinn (Mother) and Michael Todd McQuinn (Father). Mother
appeals from the trial court’s order disposing of numerous motions filed by the
parties. Mother raises several issues, which we restate and reorder as follows:
1. Did the trial court abuse its discretion in modifying child custody?
2. Did the trial court abuse its discretion in finding Mother in contempt?
3. Did the trial court abuse its discretion in declining to impute income to Father?
4. Did the trial court abuse its discretion in awarding Father the right to claim tax exemptions for the parties’ children?
5. Did the trial court abuse its discretion in restricting Mother’s significant other from being present during parenting time exchanges and the children’s extracurricular activities?
6. Did the trial court abuse its discretion in awarding Father attorney fees?
[2] We affirm.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 2 of 28 Facts & Procedural History1
[3] Mother and Father have three children: a son, J.M., born in 1999; a daughter,
M.M., born in 2001; and another daughter, H.M., born in 2005 (collectively,
the Children). Mother filed her dissolution petition on April 16, 2009, and
pursuant to a mediated settlement agreement adopted in March 2010, the
parties shared joint legal custody of the Children, Mother was awarded physical
custody, and Father was awarded parenting time in excess of that set forth in
the Indiana Parenting Time Guidelines.
[4] In July 2011, custody was modified to grant Mother sole legal custody of the
Children and to provide that the parties would split physical custody equally on
alternating weeks. Custody was modified again on July 30, 2013. At that time,
Father was granted sole legal and physical custody of J.M. Mother was
awarded primary physical custody of M.M. and H.M., and Mother and Father
were awarded joint legal custody of the girls. Parenting time was ordered for
both parents pursuant to the Parenting Time Guidelines, and it was ordered
that all three of the Children were to be together for parenting time. In
February 2014, parenting time was modified yet again pursuant to an agreed
order, which provided that Mother’s parenting time with J.M. would remain
1 We note that Mother’s statement of facts contains a number of argumentative statements. We remind Mother’s counsel that the statement of facts in an appellate brief should be devoid of argument. See Minix v. Canarecci, 956 N.E.2d 62, 66 n.2 (Ind. Ct. App. 2011).
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 3 of 28 unchanged, but Mother and Father would alternate physical custody of M.M.
and H.M. on a weekly basis.
[5] For reasons that are not entirely clear from the record, Mother’s relationship
with J.M. and Father’s relationship with M.M. deteriorated greatly after the
divorce, which led to problems with parenting time. Since his sixteenth
birthday in July 2015, J.M. has refused to cooperate with parenting time or to
see Mother at all. When Mother would come to his school to pick him up, he
would avoid her and ride the bus to Father’s house. When Father would drop
J.M. off at Mother’s house, J.M. would leave and walk several miles, even in
inclement weather, to Father’s or a friend’s house rather than stay with Mother.
Father imposed various punishments for J.M.’s defiance, all to no avail.
[6] M.M. has also been uncooperative with parenting time with Father. On many
occasions, when Father arrived to pick M.M. and H.M. up from Mother’s
house, M.M. refused to come outside. When Father or his current wife would
attempt to pick M.M. up from school, she would often not be present.
[7] Father filed another motion to modify custody on May 31, 2016, as well as a
motion for rule to show cause on June 10, 2016. On July 6, 2016, the trial
court denied Father’s petition to modify, “reaffirm[ed] its prior order of custody
in all respects”, reminded the parties that they were expected to abide by the
court’s prior order, and ordered that Father’s parenting time with M.M. was to
“be restarted immediately.” Appellant’s Appendix at 43. The trial court also
found Mother in contempt for failing to provide Father with health insurance
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 4 of 28 information for the Children as required and ordered her to pay $1,500 of
Father’s attorney fees as a sanction. On July 7, 2016, Father filed another
motion for rule to show cause alleging that Mother had not made M.M.
available for parenting time the previous day as ordered.
[8] Thereafter, on August 16, 2016, Mother’s significant other, Dewey Price,
picked M.M. up from school on a day that Father was scheduled to have
parenting time. This led to a confrontation between Father and Price in the
school parking lot, which culminated in Price driving away with M.M. and the
police being called. On August 18, 2016, Father filed an emergency motion for
rule to show cause alleging that Mother had repeatedly defied court orders by
concealing M.M. within her home during Father’s scheduled parenting time,
including following the August 16 incident at M.M.’s school. A hearing was
held on August 30, 2016, at the conclusion of which the trial court found
Mother in contempt and imposed thirty days incarceration, with five days
executed and the remainder suspended. The court further ordered that Father
was to immediately exercise forty consecutive days of make-up parenting time
with M.M. At the same hearing, the trial court found Price to be in direct
contempt for signaling answers to Mother during her testimony, and he was
ordered to serve forty-eight hours in jail as a sanction.
[9] Both parties filed numerous additional motions and petitions. Those relevant
to this appeal include: Mother’s and Father’s cross-petitions to modify custody
and parenting time, Father’s motions for rule to show cause, Father’s petition to
restrain Mother from having Price present during parenting time exchanges or
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 5 of 28 at the Children’s activities and schools, Father’s petition to modify child
support and tax exemptions, and Father’s request for attorney fees. Following a
four-day hearing, the trial court issued its order on all pending matters on July
3, 2017.2 In its order, the trial court awarded Father sole legal custody and
primary physical custody of all three of the Children. Mother was awarded
parenting time pursuant to the Guidelines with M.M. and H.M., and two hours
of supervised parenting time per week with J.M. The trial court recalculated
child support accordingly, and it further granted Father the right to claim the
tax exemptions for all three of the Children henceforth. Additionally, the trial
court granted Father’s request to restrain Mother from having Price present at
parenting time exchanges and the Children’s schools and activities, and it
further found Mother to be in contempt for discussing the litigation with M.M.
and for failing to abide by the previous court order regarding tax exemptions for
2014 and 2015. Finally, the trial court ordered Mother to pay $14,000 of
Father’s attorney fees. Mother now appeals. Additional facts will be provided
as necessary.
Discussion & Decision
2 Mother did not include this order in her appendix, instead filing it separately as an addendum to her brief. Thus, we will cite the order separately as follows: July 3, 2017 Order. Mother has also failed to include a number of relevant filings in her appendix. See Wilhoite v. State, 7 N.E.3d 350, 354-55 (Ind. Ct. App. 2014) (noting that it is the appellant’s burden to provide us with an adequate record to permit meaningful appellate review). We are permitted, pursuant to Indiana Evidence Rule 201(a), to take judicial notice of the “records of a court of this state.” See Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App. 2012) (explaining that judicial notice may be taken at any stage of the proceedings, including on appeal), trans. denied. We have done so where necessary.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 6 of 28 [10] Where, as here, the trial court enters findings of fact sua sponte, the specific
findings control only as to the issues they cover, while a general judgment
standard applies to any issue upon which the court has not entered findings.
Brinkmann v. Brinkmann, 772 N.E.2d 441, 444 (Ind. Ct. App. 2002). The
specific findings will not be set aside unless they are clearly erroneous, and we
will affirm the general judgment on any legal theory supported by the evidence.
Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind. Ct. App. 1997), trans. denied. A
finding is clearly erroneous when there are no facts or inferences drawn
therefrom that support it. Id. at 76-77. In reviewing the trial court’s findings,
we neither reweigh the evidence nor judge the credibility of the witnesses. Id. at
77. Rather, we consider only the evidence and reasonable inferences drawn
therefrom that support the findings. Id.
1. Custody Modification
[11] Mother first challenges the trial court’s decision to modify child custody. We
review custody modifications for an abuse of discretion, with a preference for
granting latitude and deference to our trial judges in family law matters. Kirk v.
Kirk, 770 N.E.2d 304, 307 (Ind. 2002). In the initial custody determination,
both parents are presumed equally entitled to custody, but a petitioner seeking a
subsequent modification bears the burden of demonstrating that the existing
custody should be altered. Id. When reviewing a trial court’s decision
modifying custody, we may not reweigh the evidence or judge the credibility of
the witnesses. Browell v. Bagby, 875 N.E.2d 410, 412 (Ind. Ct. App. 2007), trans.
denied. Instead, we consider only the evidence most favorable to the judgment Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 7 of 28 and any reasonable inferences therefrom. Id. Importantly, we observe that our
court’s deference to the trial court’s decision to modify custody is “a reflection,
first and foremost, that the trial judge is in the best position to judge the facts, to
get a feel for the family dynamics, to get a sense of the parents and their
relationship with their children—the kind of qualities that appellate courts
would be in a difficult position to assess.” MacLafferty v. MacLafferty, 829
N.E.2d 938, 940-41 (Ind. 2005).
[12] Indiana Code § 31-17-2-21 provides that a trial court may not modify a child
custody order unless (1) the modification is in the best interests of the child and
(2) there is a substantial change in one or more of the factors that the court may
consider under I.C. § 31-17-2-8. I.C. § 31-17-2-8 provides that the trial court is
to consider all relevant factors,3 including:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
3 In her reply brief, Mother argues that the trial court was prohibited from considering factors other than those specifically enumerated in I.C. § 31-17-2-8. The statute, however, provides that the trial court must consider all relevant factors, including but not limited to those specifically set forth therein. To the extent that the trial court considered additional factors not listed in I.C. § 31-17-2-8, such consideration was not error.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 8 of 28 (4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian . . . .
[13] Mother claims that the trial court erred by failing to consider the statutory
factors set forth above.4 In substance, however, she simply argues that the trial
4 To the extent that Mother argues that the trial court should have entered special findings with respect to each factor set forth in I.C. § 31-17-2-8, we note that Mother failed to request special findings. See In re
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 9 of 28 court did not weigh the factors and the evidence as she believes it should have.
These arguments are nothing more than requests to reweigh the evidence,
which we will not indulge on appeal.
[14] The trial court made the following relevant findings with respect to its decision
to modify custody:
The [C]hildren’s age and continued struggles between the parties, among all other factors that the Court may consider, demonstrate a substantial and continuing change in circumstances that render the current custody arrangement unreasonable and no longer in the [C]hildren’s best interests. . . .
The Court finds that changing custody to Father will result in more stability for the children emotionally and that Father is more likely to facilitate meaningful parenting time than Mother. . ..
[15] Mother does not directly challenge these findings, and they are supported by the
evidence.5 In addition to the Children’s ages and the increasingly contentious
Marriage of Harpenau, 17 N.E.3d 342, 347 n.3 (Ind. Ct. App. 2014) (explaining that a trial court modifying custody is not required to enter special findings unless requested by a party). 5 Mother argues in her Reply Brief that the trial court was prohibited from considering evidence of events taking place before the July 6, 2016 order denying Father’s previous petition to modify custody. In support, Mother cites I.C. § 31-17-2-21(c), which provides that a “court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 and, if applicable, section 8.5 of this chapter.” As the statutory language makes clear, I.C. § 31-17-2-21(c) does not absolutely restrict the trial court from considering evidence of events occurring before the last custody proceeding—such evidence may be considered if relates to a change in the factors relating to the best interests of the child set forth in I.C. § 31- 17-2-8. To the extent the trial court might have considered evidence of events taking place prior to the July 6, 2016 order, it was permitted to do so for the purposes of identifying the parents’ and the Children’s ongoing patterns of behavior and the current nature of their relationships and interactions. See also Parks v. Grube, 934 N.E.2d 111, 117 (Ind. Ct. App. 2010) (finding no error in the consideration of facts occurring before previous
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 10 of 28 relationship between the parents, the wishes of the parents with respect to
custody have also changed, given that both requested modification. Evidence
was also presented that the relationship between J.M. and M.M. has suffered
under the current custody arrangement—M.M. tends to identify with Mother
and J.M. tends to identify with Father, and the hostility between the parents has
driven a wedge between the two eldest children. The trial court was within its
discretion to conclude that living in different homes every other week has
contributed to the rift between J.M. and M.M.6
[16] Although M.M. expressed a desire to live with Mother and M.M.’s counselor
opined that moving in with Father was very likely to cause M.M. to suffer
increased anxiety, the counselor further noted that M.M. had become “more
resilient” since she began seeing her in the fall of 2016 and had developed skills
to cope with her anxiety. Appellant’s Appendix at 58. The counselor further
opined that the week-on, week-off parenting time schedule was very hard on all
of the Children and that M.M. was likely to be “higher functioning” if she lived
with Father because Father’s home offers more structure and guidance. Id.
The counselor also stated that she believed Mother and M.M. spoke excessively
about court and custody, to the point that the counselor implemented a rule
custody order because the evidence was considered “in the context of its continuing effect on the Children” (emphasis in original)); Wiggins v. Davis, 737 N.E.2d 437, 441 (Ind. Ct. App. 2000) (finding no error in consideration of events occurring before the previous custody order because the events “had a connection to” subsequent events). 6 Neither party sought to modify custody of J.M.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 11 of 28 whereby Mother and M.M. agreed to discuss these issues for no more than five
minutes per day.
[17] Additionally, H.M. told the guardian ad litem that she found the current
custody arrangement difficult to manage and expressed a desire to live with
Father full time. H.M. stated that Mother became angry with her when she
said she wanted to live with Father, and one time when they were discussing
the issue in the car, Mother slammed on the brakes in middle of traffic and
began yelling at her. H.M. further stated that Mother told her “lies” about
Father, claiming that Father put Mother in jail and wants to take H.M. away
from Mother and never let her come back. Id. at 57. H.M. stated that she does
not hear Father talk about Mother very much. H.M. also stated that Mother
often works too late to help her with her homework and often got her to
activities late. H.M. said she would prefer to live with Father because his house
is cleaner, she knows her laundry will always be done, she will get to places on
time, and because Father and her stepmother are always around to help her
with her homework. All of these facts are sufficient to support the trial court’s
order modifying custody.
2. Contempt
[18] Mother next argues that the trial court abused its discretion in finding her to be
in contempt. A determination of whether a party is in contempt of court is a
matter within the trial court’s sound discretion, and we reverse only where there
has been an abuse of that discretion. Richardson v. Hansrote, 883 N.E.2d 1165,
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 12 of 28 1171 (Ind. Ct. App. 2008). Our review is limited to considering the evidence
and reasonable inferences drawn therefrom that support the trial court’s
judgment. Piercey v. Piercey, 727 N.E.2d 26, 31 (Ind. Ct. App. 2000).
[19] Contempt of court “involves disobedience of a court which undermines the
court’s authority, justice, and dignity.” Srivastava v. Indianapolis Hebrew
Congregation, Inc., 779 N.E.2d 52, 60 (Ind. Ct. App. 2002), trans. denied. There
are two types of contempt—direct and indirect. Id. Mother was found to be in
indirect contempt, which involves actions outside the trial court’s personal
knowledge. In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50, 61–62
(Ind. Ct. App. 2005). “Willful disobedience of any lawfully entered court order
of which the offender had notice is indirect contempt.” Francies v. Francies, 759
N.E.2d 1106, 1118 (Ind. Ct. App. 2001), trans. denied.
[20] In its July 3, 2017 order, the trial court found Mother to be in contempt on two
separate grounds—for discussing custody issues with M.M. and for failing to
abide by the order of the court regarding tax exemptions in 2014 and 2015.
Mother challenges both findings, and we address her arguments in turn.
[21] With respect to the first contempt finding, Mother does not dispute that she
discussed the litigation with M.M. Indeed, M.M.’s counselor indicated that
Mother and M.M. engaged in such discussion so excessively that she found it
necessary to institute a rule that M.M. and Mother would be allowed to discuss
such matters for no more than five minutes per day. On appeal, Mother argues
that no court order prohibited her from engaging in such discussions with M.M.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 13 of 28 [22] The trial court determined that Mother was prohibited from discussing the
litigation with M.M. under Paragraph 7 of the mediated settlement agreement,
which provides as follows:
7. Non-disparagement: Each party shall totally and completely refrain from discussing the other with the children except in a manner which is supportive of or complimentary to the other. Each party shall refrain from any effort to alienate the children from the other parent, the absolute aim of the parents is to be a healthy and respectful relationship of the children with each parent. Disputes between the parents regarding the above shall be resolved between themselves and neither shall include the children in these disputes or their resolution.
Appellant’s Appendix Vol. 2 at 5 (emphasis supplied). According to Mother, the
last sentence of this paragraph refers only to the subject matter of Paragraph 7—
in other words, Mother asserts the language “regarding the above” means that
the parents were prohibited only from involving their children in disputes about
disparagement or alienation. Id. We are unconvinced. Paragraph 7 was part of
a larger mediated settlement agreement, and the preceding paragraphs
addressed custody and other matters. The phrase “regarding the above” as used
in Paragraph 7 encompasses disputes regarding the matters set out in all of
those preceding paragraphs. Contrary to Mother’s argument on appeal, we see
nothing ambiguous or indefinite about the order.
[23] With respect to the contempt finding based on Mother’s failure to abide by a
court order concerning tax exemptions, we note that at the relevant times, the
order regarding tax exemptions provided that Mother would claim M.M. every
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 14 of 28 year, Father would claim J.M. every year, and Mother and Father would
alternate claiming H.M., with Father claiming her in even-numbered years and
Mother claiming her in odd-numbered years. Mother concedes that she
claimed H.M. in 2014, a year in which Father was entitled to claim her.
Mother argues, however, that her actions were not willful. Mother claims that
her tax preparer mistakenly claimed H.M., and that once Mother became aware
of the mistake, she offered to file an amended return. But by the time of the
hearing in this matter, Mother still had not done so. Mother suggests that the
onus was on Father to instruct her on how he wanted her to resolve the
problem, but the court order regarding tax exemptions spoke for itself.
[24] Mother also argues that the trial court’s contempt finding relating to her 2015
tax return is “totally unsupported by evidence and is completely contrary to
direct evidence presented to the court.” Appellant’s Brief at 26. In his October
25, 2016 motion for rule to show cause7 relating to the tax exemptions, Father
asserted that his 2015 tax return was rejected because Mother had already
claimed J.M. in violation of the court’s order. Father also testified to this
effect. Nevertheless, Mother directs our attention to Exhibit E, which is a copy
of a 2015 tax return prepared on her behalf in which only M.M. is claimed as a
dependent. It is apparent, however, that Exhibit E is an amended tax return.
Indeed, it is dated November 14, 2016—approximately three weeks after Father
filed his motion for rule to show cause. Moreover, Exhibit F, a Form 1040X
7 We have taken judicial notice of this motion because it was omitted from Mother’s appendix.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 15 of 28 Amended Income Tax Return for 2015 prepared on Mother’s behalf, is also
dated November 14, 2016, and it reflects that the return was amended to
“change . . . exemptions for dependents, remove [J.M.]” Exhibits, Vol. 6,
Respondent’s Exhibit F. It is therefore apparent that Mother had claimed J.M.
as a dependent in her original 2015 tax return, which does not appear to have
been entered into evidence. This was in violation of the court order, which
provided that Father would claim J.M. every year. Further, as Mother testified
at the hearing, she had not yet filed her amended tax return for 2015.
Accordingly, the trial court’s contempt finding was supported by the evidence.
3. Income Imputation
[25] Mother also argues that the trial court abused its discretion in calculating the
parties’ respective child support obligations because it declined to impute
income to Father based on his current wife’s contributions to household
expenses. Under the income shares model set forth in the Indiana Child
Support Guidelines, the cost of supporting the children is apportioned between
the parents according to their means, and the overarching premise is that
children should receive the same portion of parental income after a dissolution
that they would have received had the family remained intact. Glover v.
Torrance, 723 N.E.2d 924, 936 (Ind. Ct. App. 2000). A trial court’s calculation
of child support is presumed valid, and we will review its decision only for an
abuse of discretion. Thompson v. Thompson, 811 N.E.2d 888, 924 (Ind. Ct. App.
2004), trans. denied. An abuse of discretion occurs if the trial court’s decision is
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 16 of 28 clearly against the logic and effect of the facts and circumstances presented or if
the court has misinterpreted the law. Id.
[26] “When fashioning a child support order, the trial court’s first task is to
determine the weekly gross income of each parent.” Ratliff v. Ratliff, 804 N.E.2d
237, 245 (Ind. Ct. App. 2004). “Weekly gross income” is defined to include not
only actual income from employment, but also potential income if the parent is
unemployed or underemployed and, as is relevant here, imputed income from
in-kind benefits. Id. See also Ind. Child Support Guideline 3(A). With respect
to in-kind benefits provided by a subsequent spouse, the commentary to the
guidelines provides as follows:
Whether or not income should be imputed to a parent whose living expenses have been substantially reduced due to financial resources other than the parent’s own earning capabilities is also a fact-sensitive situation requiring careful consideration of the evidence in each case. It may be inappropriate to include as gross income occasional gifts received. However, regular and continuing payments made by a family member, subsequent spouse, roommate or live-in friend that reduce the parent’s costs for rent, utilities, or groceries, may be the basis for imputing income. If there were specific living expenses being paid by a parent which are now being regularly and continually paid by that parent’s current spouse or a third party, the assumed expenses may be considered imputed income to the parent receiving the benefit. The marriage of a parent to a spouse with sufficient affluence to obviate the necessity for the parent to work may give rise to a situation where either potential income or imputed income or both should be considered in arriving at gross income.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 17 of 28 Child Supp. G. 3(A), cmt. d.
[27] On appeal, Mother argues that under the Guidelines, “[t]o ignore in-kind
benefits [in the form of a subsequent spouse’s income] is just as erroneous as if a
trial court were to ignore a regular paycheck earned from regular and steady
employment and find that despite the regular paycheck a parent had no income
from that employment.” Appellant’s Brief at 21-22. A review of the relevant case
law reveals that the matter is not as clear-cut as Mother would have us believe.
[28] In Gilpin v. Gilpin, 664 N.E.2d 766, 767 (Ind. Ct. App. 1996), this court reversed
the trial court’s child support order due to its failure to consider evidence of the
contribution of the mother’s subsequent spouse toward the mother’s monthly
expenses. Specifically, the court reasoned as follows:
The evidence discloses that Brenda’s monthly expenses are approximately $2,400.00. Of this amount, her subsequent spouse contributes one-half, or roughly $1,200.00. Testimony also disclosed that included in this amount is Brenda’s subsequent spouse’s contribution towards mortgage payments on a house which she owned prior to her remarriage. The trial court improperly failed to consider this evidence in its calculation of Brenda’s income for purposes of her petition.
Id.
[29] In Glass v. Oeder, 716 N.E.2d 413, 417-18 (Ind. 1999), on the other hand, our
Supreme Court found no error in the trial court’s failure to impute income
based on a subsequent spouse’s contributions to living expenses. The court
noted that the subsequent spouse’s contributions presumably freed up
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 18 of 28 additional money for the support of the children and could properly be
considered in calculating the mother’s gross weekly income. The court noted
further, however, that “the trial court found no imputed income from Oeder’s
spouse after balancing these factors and others[.]” Id. The court found no error
in the trial court’s weighing of these factors. Id.
[30] This court had occasion to address the issue again in Carmichael v. Siegel, 754
N.E.2d 619 (Ind. Ct. App. 2001). Although the court reversed on another basis,
it nevertheless discussed the mother’s subsequent spouse’s income because the
issue was likely to arise on remand. Id. at 630. The court cautioned that
“[g]reat care should be taken on remand if the trial court does decide to impute
income” based on her subsequent spouse’s contributions to her expenses. Id.
The court discussed Gilpin and Glass, and provided the following guidance:
We conclude that when a trial court chooses to impute income to a parent based upon expenses paid by his or her current spouse, there should be some consideration of the parent’s historical expenses before remarriage and how much of those expenses have now been assumed by the current spouse. . . .
If there were expenses being paid by Mother prior to her remarriage that are now being paid by her current husband, that benefit may be considered. In that instance, Mother’s remarriage has in fact “freed up” money for child support that was not previously available, and such payments may be imputed as income because they have reduced Mother’s cost of living from what it was before remarriage.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 19 of 28 Id. at 631. Taken together, Gilpin, Glass, and Carmichael make it clear that trial
courts have considerable discretion in determining whether to impute income
based on a subsequent spouse’s income.
[31] Father is a self-employed auto mechanic. In the past, he has made about $1000
per week, but due to economic reversals in the automotive industry, his income
has dropped to $529 per week.8 Father’s wife is an attorney, and their joint
adjusted gross income for 2015 was $91,041. Mother has not directed our
attention to any evidence concerning Father’s historical expenses before his
remarriage and the extent to which those expenses have been assumed by his
wife. Thus, it is unclear whether Father’s remarriage has in fact “freed up”
additional funds. Indeed, based on the evidence presented, it appears that
Father’s monthly expenses increased significantly following his remarriage.
Specifically, he and his wife purchased a new home and their mortgage
payment is approximately $5000 per month. Mother’s Exhibit 2 indicates that
that Father and his wife’s expenses regularly exceed their income, and Father
testified that they have had to use a line of credit on their house to pay living
expenses.
[32] We must also note that the record reflects that Mother has not paid the
mortgage on her primary residence since at least 2012, and she recently
inherited a second home, which she testified that she planned to either sell, rent,
8 Father testified that he is not currently paying himself any income from his business, but he listed this amount as potential income.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 20 of 28 or use as a “weekend home” for herself and the Children. Transcript Vol. 2 at
219. Although Mother has not paid rent or a mortgage for several years, the
trial court declined to impute income to her on that basis. See Glass, 716 N.E.2d
at 417 (affirming the trial court’s decision to impute income to the father on the
basis that he lived rent-free in his family home, which resulted in reduced living
expenses and freed up money for support of the children). It appears to us that
the trial court’s decision not to impute income to either parent was an attempt
to balance the equities in a situation where the precise value of the in-kind
benefits each parent received was uncertain. Such balancing is a matter
squarely within the trial court’s discretion, and we will not second-guess its
decision in that regard.
4. Tax Exemptions
[33] Mother also argues that the trial court abused its discretion in granting Father
the right to claim all three of the Children as exemptions on his income tax
returns going forward. Specifically, Mother argues that trial court failed to
consider the relevant factors set forth in in the Indiana Child Support
Guidelines. Child Support Guideline 9 provides, in relevant part, as follows:
Development of these Guidelines did not take into consideration the awarding of the income tax exemption. Instead, it is required [that] each case be reviewed on an individual basis and that a decision be made in the context of each case. . . .
A court is required to specify in a child support order which parent may claim the child(ren) as dependents for tax purposes.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 21 of 28 In determining when to order a release of exemptions, it is required that the following factors be considered: (1) the value of the exemption at the marginal tax rate of each parent;
(2) the income of each parent;
(3) the age of the child(ren) and how long the exemption will be available;
(4) the percentage of the cost of supporting the child(ren) borne by each parent;
(5) the financial aid benefit for post-secondary education for the child(ren);
(6) the financial burden assumed by each parent under the property settlement in the case; and
(7) any other relevant factors, (including health insurance tax subsidies or tax penalties under the Affordable Care Act).
[34] Mother argues that the trial court’s failure to enter findings explaining its
decision to award the exemptions to Father amounts to reversible error. We
again note that in the absence of a Trial Rule 52 request, the trial court was not
required to enter special findings and conclusions thereon. If Mother wished to
have specific findings, she should have requested them. Further, in reviewing a
general judgment, we will presume the trial court followed the applicable law
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 22 of 28 and affirm if its decision can be sustained on any legal theory consistent with
the evidence. Sims v. Sims, 770 N.E.2d 860, 864 (Ind. Ct. App. 2002).
[35] Although most of the specific factors set forth in Child Support Guideline 9
would appear to support apportioning at least some of the tax exemptions to
Mother, the Guideline specifically provides that the trial court may consider
“any other relevant factors” and that each case should be considered on an
individual basis. In this case, Father is now the primary physical custodian of
all three of the Children, and Mother has demonstrated an unwillingness or
inability to abide by court orders splitting and/or alternating the tax
exemptions. Under these circumstances, we cannot conclude that the trial
court’s decision to award the right to claim the tax exemptions to Father was an
abuse of discretion.
5. Mother’s Significant Other
[36] Mother also argues that the trial court abused its discretion in restricting Price
from being present at parenting time exchanges, school pick-ups and drop-offs,
and the Children’s extracurricular activities. Mother cites no authority in
support of her argument that such restrictions exceeded the trial court’s
authority, and her argument in this regard is therefore waived. See McCollough
v. Noblesville Sch., 63 N.E.3d 334, 346 (Ind. Ct. App. 2016) (finding appellate
claim waived for failure to cite relevant authority or make cogent argument),
trans. denied.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 23 of 28 [37] Waiver notwithstanding, Mother’s argument fails. “In all parenting time
controversies, courts are required to give foremost consideration to the best
interests of the child.” A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 120, 125 (Ind.
Ct. App. 2004), trans. denied. The trial court’s resolution of such issues will be
upheld if the record reveals a rational basis supporting the decision. Id. at 124-
125 (upholding a trial court’s order prohibiting the father from encouraging or
allowing the child to participate in holiday-related activities that conflicted with
the tenets of the child’s and custodial mother’s religion).
[38] As an initial matter, we note that in her issue statement, Mother characterizes
the order as “prohibiting [Price] from any contact with the [C]hildren[.]”
Appellant’s Brief at 34. This is a misstatement of the order; rather, the trial court
has ordered that Mother is not to permit Price to be present at parenting time
exchanges, school pick-ups and drop-offs, and the Children’s extracurricular
activities. In other words, the trial court has prohibited Mother from allowing
Price to be present at times when Father is also likely to be present, along with
the Children. Given the long history of conflict between Father and Price in
such situations and the obvious potential for harm to the Children resulting
therefrom, these restrictions were reasonable, and they do not amount to an
undue restriction on Mother’s parenting time.9 Mother’s assertion that these
9 Mother also appears to take issue with the trial court’s order jailing Price for direct contempt for signaling answers to Mother during her testimony at a hearing on August 30, 2016. Mother lacks standing to challenge the trial court’s order holding someone else in contempt. Furthermore, to the extent Mother argues that the restrictions the trial court placed on Price were an additional punishment for his prior contempt, we find nothing in the record to support such an assertion. Although the trial court mentioned Price’s prior
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 24 of 28 restrictions were in excess of what Father had requested is also inaccurate,10 and
in any event, Mother has not directed our attention to any authority suggesting
that the trial court is limited to ordering only such restrictions as have been
requested by the parties. Mother has not established reversible error in this
regard.
6. Attorney Fees
[39] Finally, Mother challenges the trial court’s award of attorney fees. In post-
dissolution proceedings, a trial court may order a party to pay a reasonable
amount toward the opposing party’s attorney fees. Bessolo v. Rosario, 966
N.E.2d 725, 733 (Ind. Ct. App. 2012), trans. denied. Trial courts have broad
discretion in awarding attorney fees, and their decisions will be reversed only
when they are clearly against the logic and effect of the facts and circumstances
before the court. Id. In assessing attorney fees, the trial court may consider
such factors as the parties’ resources, their relative earning ability, and other
factors bearing on the reasonableness of the award. Further, any misconduct by
a party that directly results in the other party incurring additional attorney fees
may be taken into account. Id.
contempt in entering the relevant restrictions, it did so to provide an example of the ways in which Price has behaved inappropriately with respect to these proceedings. Price’s behavior both in and out of court is relevant and provides ample support for the trial court’s restrictions. 10 Because Mother omitted Father’s request to restrict Price’s presence from her appendix, we have taken judicial notice thereof.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 25 of 28 [40] Here, the trial court explained the reasons behind its decision to award attorney
fees. Specifically, the trial court found that “based upon the parties’ respective
incomes as well as multiple contempt findings against Mother in this matter,
and numerous continuances requested by Mother to which Father objected, the
Court orders the Mother to be responsible for Father’s attorney fees which have
been incurred in the amount of $14,000.00.” July 3, 2017 Order, ¶ 22. Mother
argues that these fees are excessive and unreasonable. We are unconvinced.
[41] The trial court may consider a number of factors in determining the
reasonableness of a fee, but the hours worked and the rate charged are a
common starting point. Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d
995, 1009 (Ind. Ct. App. 2015). Further, trial court judges possess personal
expertise that they may use to determine reasonable attorney fees. Masters v.
Masters, 43 N.E.3d 570, 577 (Ind. 2015). At the hearing on May 23, 2017,
Father’s attorney testified that since July 2016, he had worked 42.4 hours on
the case at a rate of $300 per hour, resulting in a bill totaling $12,720.00 at that
time. It appears that the $14,000 amount awarded by the trial court took into
account the fact that the hearing continued on June 13, 2017 and resulted in the
accumulation of additional fees.
[42] Mother argues that this award must be reversed because no evidence was
presented concerning the reasonableness of the fees. As noted above, however,
trial judges have personal expertise on such matters, and Mother did not cross-
examine Father’s counsel or dispute the reasonableness of the fees requested at
the hearing. Even more telling, however, is Mother’s own request for attorney
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 26 of 28 fees, which the trial court denied. Mother’s counsel filed an affidavit asserting
that he had worked 68.8 hours on the case at a rate of $250 per hour, resulting
in a total fee of $17,200.00. Mother’s counsel averred that his hourly rate was
reasonable and that the amount of time expended on the case was necessary
and justifiable. Mother’s argument that the trial court’s award of $14,000 in
attorney fees to Father is unreasonable rings hollow in light of her own request
for attorney fees in the amount of $17,200.
[43] Mother also attempts to downplay her own conduct that caused Father to incur
additional attorney fees, asserting that “only two” contempt findings were made
and that Father had to file only “a single pleading” to compel discovery and
that Father’s motion to quash overly broad discovery was likewise “a single
pleading.” Appellant’s Brief at 31. These arguments are merely requests to
reweigh the evidence. Nevertheless, we note that in addition to the two
contempt findings made in the July 3, 2017 order, Mother was found in
contempt on July 5, 2016, for failing to provide Father with proof of insurance
coverage for the Children and ordered to pay $1,500 of Father’s attorney fees as
a sanction. Mother was again found in contempt on August 30, 2016, this time
for interfering with Father’s parenting time with M.M., and she was
incarcerated and ordered to pay $750 of Father’s attorney fees as a sanction. As
for Mother’s arguments concerning the effort Father’s counsel was required to
expend to resolve discovery disputes, we note that Mother does not take into
account the time counsel presumably spent attempting to resolve such matters
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 27 of 28 without the intervention of the court. Further, Mother does not dispute that she
requested several continuances.
[44] Mother earns far more money than Father and is consequently more capable of
paying attorney fees, and her own misconduct and dilatory tactics directly
resulted in Father incurring additional attorney fees. Further, Mother has not
established that the amount awarded is unreasonable. Under these facts and
circumstances, we cannot conclude that the trial court’s attorney fee award was
an abuse of discretion.
[45] Judgment affirmed.
[46] May, J. and Vaidik C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 28 of 28