MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jul 25 2017, 6:40 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEE James W. Klenner Matthew S. Schoettmer Whiteland, Indiana Van Valer Law Firm, LLP Greenwood, Indiana
IN THE COURT OF APPEALS OF INDIANA
James W. Klenner, July 25, 2017 Appellant-Respondent, Court of Appeals Case No. 41A01-1701-DR-71 v. Appeal from the Johnson Superior Court Lisa M. Klenner, The Honorable Marla K. Clark, Appellee-Petitioner. Judge Trial Court Cause No. 41D04-1311-DR-755
Mathias, Judge.
[1] The Johnson Superior Court entered a decree dissolving the marriage between
James W. Klenner (“Father”) and Lisa M. Klenner (“Mother”), and ordering
Father to pay $101 per week in child support and $99 per week toward a child
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 1 of 19 support arrearage. Father appeals and presents three issues, which we renumber
and restate as:
I. Whether the trial court abused its discretion by calculating Father’s child support obligation using evidence of Father’s income presented by Mother;
II. Whether the trial court abused its discretion by ordering Father to pay toward a child support arrearage;
III. Whether the trial court abused its discretion by not considering the wishes of the parties’ children when determining parenting time; and
IV. Whether the trial court abused its discretion by declining to find Mother in contempt.
[2] We affirm.
Facts and Procedural History1 [3] Mother and Father were married in June 1999. Mother and Father had three
children: a daughter, T.K., born in December 2000, and two sons, N.K., born
in May 2002, and T.J.K., born in August 2005.
[4] On November 6, 2013, Mother filed a petition for legal separation, and, on
April 30, 2014, filed a petition to dissolve the marriage. Mother and Father
participated in mediation, which resulted in an agreement regarding issues of
property and finances. Pursuant to the mediated agreement, Mother was to
continue to live in the marital residence until March 1, 2015, at which time she
1 Father has failed to provide us with a transcript of the evidentiary hearings in this case. We therefore take most of our statement of facts from the trial court’s findings of fact included in the order being appealed.
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 2 of 19 would move out and Father would move in. Until that time, Mother was
responsible for all household utilities, and Father was responsible for all other
expenses associated with the home. Mother was to take any personal property
in the home that she desired, except for the household appliances, Father’s
tools, and various items of personal property belonging to Father. The parties
participated in further mediation in an attempt to resolve the issues of child
support and parenting time, but they were unable to reach an agreement.
[5] Following the separation, both parties were actively involved with their
children. Once Father obtained housing after the separation, he and Mother
shared custody in two-week time periods, with Father having the children six
days, and Mother having the children eight days in each two-week period.
Mother wished to make this arrangement permanent, whereas Father wanted
equal parenting time. After Mother moved out of the marital residence, Father
moved back in and lived there with the children; Mother bought a home nearby
and lived there with the children. The children continued to attend schools in
the same school system and enjoyed a positive relationship with both parents.
[6] On May 27, 2015, Father filed a petition to have Mother held in contempt,
alleging that she had removed fixtures from the marital home, damaged the
home, removed Father’s personal property, and failed to pay the sewer and
water utility bills. Father’s petition also sought a court order determining who
would claim the children for tax purposes and a division of the homeowner’s
association dues for that year. Five days later, Father filed a petition requesting
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 3 of 19 the trial court to have an in camera interview with the children, which the court
denied.
[7] On October 15, 2015, Mother filed a motion for the appointment of a parenting
time coordinator, which the trial court granted the following day. The parties
selected, and the trial court approved, Dr. John Ehrmann (“Dr. Ehrmann”) to
act as the parenting time coordinator. The parties attended two sessions with
Dr. Ehrmann, after which Father asked him to discontinue his services, which
he did. On June 1, 2016, Mother filed a notice of her intent to relocate.
[8] The court held a hearing on all pending motions on November 21, 2016. The
court heard evidence that Mother is a pharmacist but is partially medically
disabled and unable to work more than eighteen hours per week. She receives a
disability payment, and her gross weekly income is $1,308.05. Father is
employed by Indiana University, and his gross weekly income from this
employment is $1,533.88. Father also does work for the Town of Whiteland,
acts as a sport official, and has an independent consulting business. With these
other jobs, Father earns an additional $105.19 per week, for a total gross weekly
income of $1,639.07. Father also maintains medical and dental insurance for
the children, which costs $16.00 per week.
[9] After Father moved out of the marital residence, he at first contributed to
household expenses by depositing money into what was originally a joint bank
account. However, Father stopped making such contributions on January 1,
2015. Father did help pay for some of the children’s sporting activities. T.K. is a
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 4 of 19 competitive basketball player, and N.K. is a competitive swimmer. Father paid
for N.K.’s swimming expenses and a portion of the basketball and school
expenses for T.K.
[10] The trial court found that the children were, on the whole, well adjusted,
although T.J.K. had some behavioral issues at school, which were addressed by
working with the school. The children went to counseling to help them deal
with the separation. At the time of the hearing, T.J.K. attended counseling
regularly, T.K. still went to counseling as needed, but N.K. did not wish to
continue. Father was not in favor of the children attending counseling.
[11] The trial court entered its Order on Pending Petitions and Decree of
Dissolution of Marriage on December 14, 2016. This order provides in relevant
part as follows:
34. An award of joint legal custody is in the best interest of the children. Accordingly, Mother and Father shall share joint legal custody of the parties’ children. The parties shall work to improve their communication with each other, recognizing that each of them has strengths as a parent.
35. An award of joint physical custody is in the best interest of the children. Accordingly, Mother and Father shall share joint physical custody of the children. Absent an agreement in writing between the parties, Mother shall have primary physical custody on Sundays, Mondays, Tuesdays, and every other Friday and Saturday, including overnight. Father shall have primary physical custody on Wednesdays, Thursdays, and every other Friday and Saturday, including overnight. If the parties cannot agree on holiday parenting time, the holiday schedule in the Indiana Parenting Time Guidelines shall control, with Mother Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 5 of 19 designated as the custodial parent for this purpose only. In addition, each party shall be entitled to ten days uninterrupted parenting time during summer, and shall provide the other party with the time period elected as soon as possible, but not later than May 1 of each year. The parties shall follow all provisions of the Indiana Parenting Time Guidelines not in conflict with this Order, including the transportation provisions.
36. The parties shall complete the Parenting Partnership program, as detailed in a separate Order.
37. Mother shall pay the controlled expenses for the children.
38. Pursuant to the Indiana Child Support Guidelines, Father shall pay $101.00 per week for support of the children through INSCCU or the Johnson County Clerk’s office via immediate income withholding order to be prepared by Father’s counsel.
39. Father’s child support arrearage is established in the amount of $9898.00. Father shall repay this amount at a rate of not less than $99.00 per week until paid in full.
40. Father shall continue to provide health insurance for the children and shall furnish evidence of the current insurance in force periodically to Mother, no less often than on each anniversary date of the policy, supplying a “card” or other tangible evidence for use in an emergency.
41. The Parties will divide any and all uninsured health, dental, eye, hospitalization and counseling expenses incurred by the children as follows: Mother shall pay the first $1775.00 per year of the children’s uninsured medical expenses, after which Father shall pay 56% and Mother shall pay 44% of any additional uninsured medical expenses incurred each year. On all
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 6 of 19 uninsured medical expenses, if Father advances the cost, he is to provide a receipt to Mother, and she will pay him what she owes him within 30 days. If Mother advances the cost, she is to provide a receipt to Father, and he will pay her what he owes her within 30 days.
42. Notwithstanding the above, Father shall pay 100% of the cost of T.K.’s braces, because he authorized that treatment without consulting Mother and she therefore had no input on that decision.
43. Each party shall deposit $25.00 per month into each child’s lunch account at the child’s school for any month that school is in session. This obligation is suspended for both parties any month that the account has a balance of $50.00 or greater on the first day of the month.
44. Beginning January 1, 2017, Mother shall pay all extra- curricular expenses for T.K. up to $1,000.00 annually. Father shall pay all extra-curricular expenses for N.K. and T.J.K. combined up to $1,000.00 annually. These expenses shall include entry fees, club fees, membership fees, uniforms, shoes and accessories, pictures and training fees. Each party shall provide documentation to the other when he or she has paid his or her $1,000.00 threshold, including receipts. Any expenses in excess of that amount shall be shared equally by the parties.
45. Mother shall claim T.K. as a dependent for tax purposes every year. Father shall claim N.K. as a dependent for tax purposes every year, so long as he has paid 95% of the child support owed in the year by January 31 of the following year. The parties shall alternate claiming T.J.K. for tax purposes. Mother shall have the right to claim him for even-numbered years, and Father shall have the right to claim him for odd-
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 7 of 19 numbered years, provided that he has paid 95% of the child support owed by January 31 of the following year.
46. Father shall transfer ownership to Mother within 60 days of the Knights of Columbus insurance policies on the children. Mother shall then pay the premiums and shall keep the policies in force.
47. Both parties shall strive to keep each other properly apprised and will share authority and responsibility for major decisions concerning the children’s upbringing. When possible, the parties shall communicate via email.
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49. The parities shall discuss with each other and share decision-making authority and responsibility for major decisions affecting the welfare and upbringing of the children, with a view toward arriving at decisions which will promote the best interests of [the children].
50. Disputes shall be resolved between themselves and neither party shall include the children in their disputes or their resolution.
51. During the time that each party has physical custody of [the] children, he or she shall decide all routine matters concerning the children’s welfare and shall be responsible for all of the ordinary daily expenses incurred by or for the benefit of the children. The parties shall cooperate with one another in establishing a mutually supportive and responsible policy regarding such routine decisions. The parties shall also use all reasonable efforts to maintain free access between themselves and the children. Each party shall be entitled to speak to the
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 8 of 19 children by telephone at reasonable times and intervals when the children are in the physical custody of the other party. There shall be an open exchange of information regarding the children’s summer camps, extracurricular activities and travel away from the home of either parent; and, in case of travel away from home, the traveling parent shall provide an emergency telephone number where the parent and children can be reached.
52. The children shall continue in counseling until released by the counselor. Each party shall be responsible for transporting the children for appointments scheduled during his or her parenting time, which duty should be shared equally.
53. Mother is not in contempt regarding Father’s personal belongings or the division of personal property. She is not in contempt regarding the homeowner’s association dues. Mother is not in contempt regarding the water and sewer bill. Her failure to pay that bill was not contemptuous. However, she is in contempt regarding the condition of the house when she turned over possession of it to Father. As a result, Mother shall pay Father $250.00 within 30 days toward repairs.
54. The $500 award of attorney’s fees ordered in favor of [Mother’s counsel] against Father shall be entered as a judgment in 30 days unless Father provides the Court with a copy of the cancelled check or other proof of payment before that date.
Appellant’s App. pp. 20-22. Father now appeals.2
2 Although Father was represented by counsel before the trial court, he is proceeding pro se on appeal. This does not affect our analysis, as it is well settled that pro se litigants are held to the same standard as are licensed attorneys. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind. Ct. App. 2005).
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 9 of 19 Standard of Review [12] We give considerable deference to the findings of the trial court in family law
matters. In re Marriage of Duckworth, 989 N.E.2d 352, 354 (Ind. Ct. App. 2013)
(citing MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). This
deferential standard of review recognizes that the trial court “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.” Id. (quoting
MacLafferty, 829 N.E.2d at 940). Appellate decisions that modify the trial
court’s decision are especially disruptive in the family law setting. Id.
[13] When reviewing issues of child support,
[w]e begin with the understanding that support calculations are made utilizing the income shares model set forth in the Indiana Child Support Guidelines (the Guidelines). The Guidelines apportion the cost of supporting children between the parents according to their means. This approach is based on the premise that children should receive the same portion of parental income after a dissolution that they would have received if the family had remained intact. A calculation of child support under the Guidelines is presumed to be valid. Therefore, we will not reverse a support order [based on the Guidelines] unless the determination is clearly against the logic and effect of the facts and circumstances.
McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004) (citations
omitted). When reviewing a child support order, will neither reweigh the
evidence or judge the credibility of witnesses. Id. Instead, we consider only the
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 10 of 19 evidence favorable to the trial court’s judgment and reasonable inferences that
can be drawn from this evidence. Id.
[14] We also note that the trial court here entered findings of fact and conclusions of
law. In such cases, our standard of review is two-tiered: we first determine
whether the evidence presented supports the trial court’s factual findings;
second, we determine whether the trial court’s findings support the judgment.
Sexton v. Sexton, 970 N.E.2d 707, 710 (Ind. Ct. App. 2012). We will set aside the
trial court’s findings only if they are clearly erroneous, i.e., when review of the
record leaves us firmly convinced that a mistake has been made. Id. Although
we defer to a trial court’s factual findings, we do not defer to its conclusions of
law. Id. In order to reverse a trial court’s ruling, it is not enough that the
evidence might have supported a different conclusion. Montgomery v.
Montgomery, 59 N.E.3d 343, 350 (Ind. Ct. App. 2016), trans. denied. Rather, the
evidence must positively require the conclusion contended for by appellant
before we may reverse. Id.
Father’s Failure to Request Transcript [15] We initially observe that Father has failed to present us with a transcript3 of the
evidentiary hearing held by the trial court. In fact, Father failed to request a
3 In accordance with the definition set forth in the Appellate Rules, the “transcript” includes a volume of exhibits. See Ind. Appellate Rule 2(K) (“Transcript shall mean the transcript or transcripts of all or part of the proceedings in the trial court or Administrative Agency that any party has designated for inclusion in the Record on Appeal and any exhibits associated therewith.”) (emphasis added)). Here, Father has provided us with neither the transcript of the hearing nor the exhibits, other than to include some exhibits in his appendix.
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 11 of 19 transcript in his notice of appeal. The relevant portion of Indiana Appellate
Rule 9 provides that a notice of appeal shall include
[a] designation of all portions of the Transcript necessary to present fairly and decide the issues on appeal. If the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.
Ind. Appellate Rule 9(F)(5) (emphasis added).
[16] Although not fatal to the appeal, an appellant’s failure to present a transcript to
the court on appeal acts as a waiver of any claim of error which depends on the
evidence presented at a hearing. Lifeline Youth & Family Servs., Inc. v. Installed
Bldg. Products, Inc., 996 N.E.2d 808, 814 (Ind. Ct. App. 2013) (citing In re
Walker, 665 N.E.2d 586, 588 (Ind. 1996)); Ostrowski v. Everest Healthcare Ind.,
Inc., 956 N.E.2d 1144, 1147-1148 (Ind. Ct. App. 2011) (holding that defendant
waived challenge to trial court’s jury instructions by failing to include relevant
portions of eight-day trial in fifty-six page transcript submitted to court on
appeal); Fields v. Conforti, 868 N.E.2d 507, 511 (Ind. Ct. App. 2007) (holding
that defendant waived any arguments that depended on the evidence at trial by
failing to request a transcript of the bench trial); see also Pabey v. Pastrick, 816
N.E.2d 1138, 1141-1142 (Ind. 2004) (declining to dismiss appellant’s appeal for
failure to include a transcript of the trial because the appellant did not argue
that the trial court’s findings were unsupported by the evidence and his
argument relied on the trial court’s factual findings). Accordingly, to the extent
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 12 of 19 that Father’s arguments on appeal require us to consider the evidence presented
at the hearing, they are waived.
I. Trial Court’s Calculation of Father’s Income
[17] Father first argues that the trial court abused its discretion by calculating his
income, for purposes of determining child support, based upon evidence
presented by Mother. Specifically, he claims that Mother’s evidence overstated
his income received from his employment at Indiana University. Father’s
income from Indiana University rose slowly from 2013 to 2015, going from
$70,557 in 2013 to $71,893 in 2015. The trial court accepted Mother’s evidence
that Father’s income from Indiana University rose more dramatically in 2016,
to $79,762, or $1,533.88 per week. Father claims that this amount is in conflict
with the 2016 W-2 income withholding form he received from Indiana
University for 2016, which shows that Father received $73,002.64 in wages and
other compensation. Appellant’s App. p. 29. Thus, Father argues that the trial
court over-calculated his income from Indiana University by $6,759.36.
[18] Father’s argument requires us to consider the evidence presented at the hearing,
including the testimonial evidence, but Father has failed to provide us with a
transcript of this hearing or all the evidentiary exhibits admitted at the hearing.
Thus, we cannot adequately address Father’s argument based upon the record
presented to us. See In re Walker, 665 N.E.2d at 588.
[19] Moreover, Father’s argument is little more than a claim that the trial court
calculated his income based on evidence presented by Mother and ignored his
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 13 of 19 evidence indicating that his income was lower. It is for the trial court, acting as
the finder of fact, to determine what weight and credit to give to Mother’s
evidence. McGill, 801 N.E.2d at 1251. Father’s argument on appeal is little
more than a request that we consider the evidence he presented and find it more
worthy of credit than did the trial court. This is not our role as an appellate
tribunal. Id.
[20] We reach a similar result with regard to Father’s argument that the trial court
erred in calculating the income Father earned from his independent
consultation business. Father admits that his business income for 2015 was
$5,470, the figure the trial court used. However, he claims that his income from
this business is irregular and that his main client terminated his consulting
contract. Again, however, this argument requires us to consider evidence that is
not favorable to the trial court’s decision and reweigh the evidence. It would
also require us to consider the evidence and testimony presented at the hearing,
which is not contained in the record presented to us.
II. Mother’s Calculation of Mother’s Income
[21] Father also argues that the trial court miscalculated Mother’s income. He notes
that the trial court calculated Mother’s gross income by including her actual
gross income from her employment plus the amount she received in long-term
disability insurance benefits, for a total gross weekly income of $1,308.05.
Father claims that Mother’s disability insurance benefit income is not taxed. He
therefore claims that this income is more akin to net income and that the trial
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 14 of 19 court should therefore have considered only his post-tax net income when
calculating his child support obligation. We disagree.
[22] Father’s argument would again require us to review the evidence presented at
the hearing, but, as noted above, he has failed to include the transcript and all
the exhibits in the record before us. Moreover, Father’s argument is contrary to
the plain language of the Child Support Guidelines, which explicitly define the
term “gross weekly income” to include “income from salaries, wages,
commissions, bonuses, overtime, partnership distributions, dividends, severance
pay, pensions, interest, trust income, annuities, capital gains, social security
benefits, workmen’s compensation benefits, unemployment insurance benefits,
disability insurance benefits, gifts, inheritance, prizes, and alimony or maintenance
received.” Ind. Child Support Guideline 3(A)(1) (emphasis added). Indeed, in
promulgating the Child Support Guidelines, our supreme court rejected the use
of net income. See Child Supp. G. 1, commentary (“Gross Versus Net Income.
One of the policy decisions made by the Judicial Administration Committee in
the early stages of developing the Guidelines was to use a gross income
approach as opposed to a net income approach.”). Accordingly, the trial court
properly included Mother’s disability insurance benefits when calculating
Mother’s gross income.
III. Consideration of Wishes of the Children
[23] Father next asserts that the trial court erred by failing to take into consideration
the wishes of the children when determining the issue of child custody and
parenting time. Father notes that, per the controlling statute, there is no Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 15 of 19 presumption in favor of either parent. Ind. Code § 31-17-2-8. Pursuant to this
statute, when determining custody issues in a dissolution case, “the trial court
shall consider all relevant factors, including the following: . . . [t]he wishes of
the child, with more consideration given to the child’s wishes if the child is at
least fourteen (14) years of age.” Id. at § 8(3).
[24] Father claims that the trial court failed to consider the wishes of the children,
noting that the trial court denied his request that the trial court conduct an in
camera interview of the children. Father, however, makes no claim that he was
unable to call his children as witnesses at the hearing. Again, Father has failed
to provide us with a transcript of the hearing. Thus, based on the record before
us, we cannot say that the trial court erred by failing to consider the wishes of
the children.4
IV. Determination of Father’s Arrearage
Father also argues that the trial court erred in determining his child support
arrearage. Father contends that the trial court erred in calculating his child
support arrearage retroactively to January 1, 2015. Father notes that we have
4 Father claims, apparently based on his own personal interactions with his son N.K., that N.K. wishes to spend more time with Father and desires to speak to “the judge” deciding the appeal. Appellant’s Br. at 12. Father goes so far as to suggest that this court conduct an in camera interview with N.K. in order to determine his wishes. This claim, like many of Father’s other arguments, appears to fundamentally misunderstand our role as an appellate court. We are not a court of first instance able to accept new evidence. See Merrillville 2548, Inc. v. BMO Harris Bank N.A., 39 N.E.3d 382, 390 (Ind. Ct. App. 2015) (noting rule that this court may not consider material that is not properly part of the record on appeal), trans. denied. Nor do we reweigh evidence or determine issues of credibility. Montgomery v. Montgomery, 59 N.E.3d 343, 350 (Ind. Ct. App. 2016), trans. denied. Instead, we are an appellate court that considers only the evidence favorable to the trial court’s decision. Id.
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 16 of 19 previously held that an initial child support order can be retroactive to the date
of the petition for dissolution. Mitten v. Mitten, 44 N.E.3d 695, 705 (Ind. Ct.
App. 2015) (citing Boone v. Boone, 924 N.E.2d 649, 652 (Ind. Ct. App. 2010)).
However, the trial court has no power to issue orders pertaining to support that
that occurred prior to the filing of the petition for dissolution. Id. at 654.
[25] Here, Mother filed her petition for dissolution on April 30, 2014. Thus, the trial
court had authority to order Father to pay support retroactive to a date no
earlier than April 30, 2014. Father claims that the trial court’s arrearage
determination improperly included unpaid child support beginning in January
1, 2015. Appellant’s Br. at 14. However, January 1, 2015 is well after the April
30, 2014 date on which Mother filed her petition for dissolution. The trial court
would have been within its authority to order Father to pay support retroactive
to the date the petition for dissolution was filed.5 Father’s argument that the
trial court erred by calculating his child support arrearage by including child
support retroactive to January 1, 2015 is therefore meritless.
[26] Father also claims that the trial court erred in ordering him to pay child support
retroactive to January 1, 2015, because he contributed to the support of the
children in a litany of other ways. In support of his argument, Father refers to
items in his appendix that do not appear to have been introduced into evidence
at the evidentiary hearing. We may not consider items outside the record on
5 Father claims that January 1, 2015 is an arbitrary date chosen by Mother’s counsel. However, this ignores the trial court’s factual finding that Father helped Mother with the children’s expenses until January 1, 2015, after which he stopped contributing money to a joint bank account.
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 17 of 19 appeal. Merrillville 2548, Inc. v. BMO Harris Bank N.A., 39 N.E.3d 382, 390 (Ind.
Ct. App. 2015), trans. denied. We are unable to determine whether these items
were properly admitted at the hearing because Father has not provided us with
a transcript of the hearing or a volume of the exhibits admitted at the hearing.
We therefore consider this argument to be waived. Lifeline Youth & Family Servs.,
996 N.E.2d at 814 (citing In re Walker, 665 N.E.2d at 588).
V. Failure to Hold Mother in Contempt
[27] Lastly, Father argues that the trial court erred by failing to find Mother in
contempt. More precisely, the trial court found that Mother was not in
contempt regarding Father’s claims that she had taken his personal items, failed
to pay the homeowner’s association dues, and failed to pay the water and sewer
utility bills. The trial court did, however, find Mother in contempt with regard
to the condition of the marital home when she turned over possession of the
home to Father. Father argues that Mother should have been held in contempt
on these other matters as well.
[28] Our supreme court has recently emphasized that trial courts are given great
deference in contempt actions. Steele-Giri v. Steele, 51 N.E.3d 119, 129 (Ind.
2016). Evaluation of the person’s state of mind, i.e., whether the allegedly
contemptuous conduct was done willfully, is crucial to the determination of
contempt. Id. The trial court is in the best position to weigh and assess
credibility of the person alleged to be in contempt. Id.
Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 18 of 19 [29] Here, the trial court exercised its discretion by declining to find Mother in
contempt. The trial court was in the best position to determine Mother’s state of
mind. Because Father has failed to provide us with a transcript, we have no
means of adequately reviewing Father’s claims to the contrary. Accordingly, we
cannot say that the trial court erred in this matter.
Conclusion [30] Father has seriously impeded our review of his claims by failing to provide us
with a transcript of the evidentiary hearing held by the trial court. Still, we have
endeavored to address Father’s claims to the extent that we can based upon the
record before us. However, Father has not established that the trial court abused
its considerable discretion in this case. That is, Father has failed to show that
the trial court abused its discretion in calculating his or Mother’s income for
purposes of determining his child support obligation. Nor has he shown that the
trial court abused its discretion by failing to hold an in camera interview of the
children to determine their wishes with regard to child custody and parenting
time. Father’s argument that the trial court erred by ordering his child support
obligation to include support retroactive to January 1, 2015 is meritless, as this
date is well after the date Mother filed her petition for dissolution. Lastly,
Father has not shown that the trial court abused its discretion by failing to hold
Mother in contempt on each of the issues Father raised at trial.
[31] Affirmed.
Kirsch, J., and Altice, J., concur. Court of Appeals of Indiana | Memorandum Decision 41A01-1701-DR-71 | July 25, 2017 Page 19 of 19