Kenneth R. Sumner v. Loree A. Wheeler (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 6, 2019
• Docket: 18A-DR-2070
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 06 2019, 10:07 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEE Kenneth R. Sumner Denise F. Hayden Avon, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth R. Sumner, May 6, 2019 Appellant-Respondent, Court of Appeals Case No. 18A-DR-2070 v. Appeal from the Hendricks Superior Court Loree A. Wheeler, The Honorable Rhett M. Stuard, Appellee-Petitioner Judge Trial Court Cause No. 32D02-0912-DR-162

Altice, Judge.

Case Summary

[1] Kenneth R. Sumner (Father) and Loree Wheeler (Mother) have two children

together. Following their divorce in 2010, the parties effectively coparented for

a number of years and shared equal parenting time. In 2018, Mother sought

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 1 of 11 modification of custody, parenting time, and child support. Father represented

himself at the modification hearing. The trial court ultimately modified

physical custody, parenting time, and child support as requested by Mother but

left legal custody to be shared jointly by the parties. On appeal, Father presents

three issues: (1) whether Father was unconstitutionally precluded from

presenting his entire case due to time constraints; (2) whether the trial court

improperly denied a motion to continue; and (3) whether the trial court abused

its discretion in modifying child support.

[2] We affirm.

Facts & Procedural History

[3] Mother and Father married in February 1999 and two children were born of the

marriage. 1 Mother filed for dissolution of marriage on December 31, 2009.

Thereafter, the parties entered into an agreement regarding property settlement,

custody, and support, which was approved by the court and incorporated in the

decree of dissolution on June 4, 2010 (Decree). Pursuant to the Decree, the

parties were granted joint legal and physical custody of the children, and Father

was ordered to pay $120 per month in child support through the Hendricks

County Clerk’s Office.

1 Their daughter was born in February 2003, and their son was born in August 2005.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 2 of 11 [4] Mother and Father coparented well together for a number of years, and they

each remarried. During Father’s second marriage and thereafter, he

experienced some instability. Mother and Father worked together and

mutually agreed to temporary modifications of parenting time and child

support. After Father’s second divorce, he did not have a home in which to

exercise overnights. Thus, beginning in February 2017, the children spent all

overnights with Mother. Father expected that this would go on for a few

months, but it ended up lasting much longer.

[5] Accordingly, the parties eventually filed a Temporary Custody Agreement

(Temporary Agreement) with the court, which they had prepared without the

benefit of counsel. The Temporary Agreement provided that Mother would

have full physical and legal custody of the children, with Father exercising

parenting time with no overnights, until Father obtained a permanent

residence. The Temporary Agreement was expressly entered into to “give the

kids stability and mother peace of mind.” Appellee’s Appendix at 18. It provided

that “once Father has a permanent place of residence, they will revert back to

shared physical and legal custody of the children and Father will resume

overnight parenting time. Once Father obtains a residence, the parties will file

another agreement on custody/parenting time and return to equally shared

custody.” Id. The trial court approved the Temporary Agreement on

December 20, 2017.

[6] Father married his third wife on February 18, 2018, and they moved into a new

home the following month. Father began to resume overnight parenting time in

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 3 of 11 the spring of 2018, but the parties’ commitment to coparent effectively

deteriorated significantly over the next several months.

[7] On April 6, 2018, Mother filed her Verified Petition for Modification of the

Decree as to Parenting Time, Custody, and Child Support. Mother indicated

that she no longer believed equal shared custody was in the children’s best

interests. Thus, among other things, Mother sought modification of the Decree

to provide Father with parenting time pursuant to the Indiana Parenting Time

Guidelines (the Guidelines). The trial court scheduled a modification hearing

for July 19, 2018, which was later rescheduled for July 26, 2018.

[8] On May 7, 2018, Father filed a handwritten Motion for Update of Custody

Agreement/Return to Equal Custody. Father referenced the provision in the

Temporary Agreement setting out that once he obtained a permanent residence,

the parties would file “another agreement on custody/parenting time and return

to equally shared custody.” Id. In his motion, Father alleged that Mother had

refused to “update the court accordingly” after he obtained a permanent

residence in March 2018. Id. at 23. Mother responded to Father’s motion and

requested the appointment of a guardian ad litem (GAL). The trial court

appointed Ann Knotek as GAL on May 11, 2018. GAL Knotek filed her

confidential report with the trial court on July 19, 2018.

[9] The modification hearing, which was set for three hours, began on the morning

of July 26, 2018. Mother was represented by counsel, and Father represented

himself. In her case in chief, Mother called three witnesses – Father (briefly),

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 4 of 11 GAL Knotek, and herself – in just over two hours. 2 Father gave a short

explanation after his testimony and also cross-examined GAL Knotek. He did

not cross-examine Mother.

[10] At the beginning of his case in chief, Father noted that he would likely go

beyond the time originally set for the hearing. The trial court responded, “we

have at least a half hour left, let’s see where we get and I’ll make a decision at

that time.” Transcript at 89. Over the next hour, Father presented his own

testimony in narrative form. Noting the noon hour, the trial court confirmed

that Father still had much more to cover and inquired of Mother’s counsel if he

could come back after lunch. Counsel indicated that he would make himself

available and would also waive cross-examination if necessary. Before breaking

for lunch, the court instructed the parties to be back at 1:00 p.m. and stated,

“I’m going to give another hour and that’s it, okay. So however it’s used up is

how it’s used up and then I’m going to make my decision, okay.” Id. at 122.

[11] Father continued with his direct testimony after the lunch break, noting that he

was “trying to consolidate” and go “much faster”. Id. at 123. He spoke for

about another thirty minutes and then ended his testimony with the following

summary:

I mean there’s way more hours that we don’t have so, uh, I think for now I’ll rest there just for the final comment that, again, I’m in agreement with the GAL’s, uh, suggestions and I’m happy to –

2 Mother’s case in chief, including Father’s cross-examination, took place between 8:45 a.m. and 10:53 a.m.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 5 of 11 to do it the way she wants with that program they have, the schedules or even also to have a, uh, parenting coordinator, I think is what they call it, I’d be fine with that. I won’t fight with any of it and I – I think, hopefully, I’ve proved today, I don’t know if I’ve proved it on a lot of proof or testimonies but through my testimony today, hopefully, you can see that, uh, I’m – I’m a good father. I’m an involved father. Uh, and uh, I – I don’t see any reason for changing the fifty/fifty arrangement.

Id. at 136. After a short cross-examination by Mother’s counsel, Father

provided brief testimony on redirect. He then concluded his testimony: “I’m

afraid rambling will just get me in all these places I’ve already been so, I don’t

want to take any more of your time but, uh, I suppose if [Mother’s counsel]

says other things, I’d … respond at that time.” Id. at 152. At the conclusion of

his testimony, Father did not call any additional witnesses. The parties then

presented closing statements, and the trial court took the matter under

advisement.

[12] On July 31, 2018, the trial court issued its order modifying custody, parenting

time, and support. The court gave the parties joint legal custody and ordered

them to utilize the services of a parenting coordinator to resolve disputes before

filing motions with the court. The court granted Mother primary physical

custody of the children and Father parenting time, at a minimum, pursuant to

the Guidelines. The court also ordered Father to pay weekly child support in

the amount of $197 per week. Father now appeals. Additional information

will be provided below as needed.

Discussion & Decision

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 6 of 11 1. Time Constraints

[13] Father, now represented by counsel, suggests that his due process rights 3 were

violated at the hearing because he was not allowed to present his entire case due

to time constraints. In this regard, Father asserts that Mother was afforded two-

thirds of the time to present her case, leaving him only one-third of the time to

present his case.

[14] There is no doubt Mother used more time to present her case, but the disparity

is not as great as that suggested by Father. Moreover, a thorough review of the

record reveals that the trial court was patient with Father throughout his self-

representation and did not cut off Father during his testimony. The trial court

provided more time for Father and encouraged him to manage this time wisely.

Father concluded his testimony without prompting from the trial court and then

did not seek to call any additional witnesses 4 or otherwise present more

evidence. In sum, Father rested his case on his own narrative testimony, which

took place over about one and one-half hours of the hearing.

[15] Father chose to represent himself at the hearing. As a pro-se litigant he is held

to the “same standards as a trained attorney and is afforded no inherent

leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17

N.E.3d 259, 266 (Ind. 2014). “One of the risks that a defendant takes when he

3 Father generally directs us to Article 1, § 12 of the Indiana Constitution in support of this argument. 4 In fact, Father testified that he “didn’t bring witnesses today.” Transcript at 130.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 7 of 11 decides to proceed pro se is that he will not know how to accomplish all of the

things that an attorney would know how to accomplish.” Smith v. Donahue, 907

N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied. In this case, Father had

control over how he managed his time, whom he called as witnesses, and

whether he would cross-examine witnesses. The trial court did not

unconstitutionally curtail the presentation of Father’s case.

2. Continuance

[16] Father asserts that he made an oral motion to continue the hearing and that the

trial court abused its discretion by denying the motion. This argument is

disingenuous because Father never actual moved to continue the hearing. He

simply indicated, “I may request a continuance”. Transcript at 90. Further,

Father indicated that the basis of his possible motion would be that the GAL

did not file her report at least ten days before the hearing as required by Ind.

Code § 31-17-2-12(c). Contrary to his assertion on appeal, Father did not claim

that he had insufficient time to prepare to challenge the GAL’s report and

testimony. In fact, Father testified that he was essentially in agreement with the

GAL’s recommendations.

[17] To the extent Father’s statement can be viewed as a motion for a continuance,

such a request was untimely. The GAL had already testified regarding the

report, been cross-examined by Father, and been released. The time had come

and gone to seek a continuance based on the timeliness of the GAL’s report.

See In re Paternity of M.J.M., 766 N.E.2d 1203, 1207-08 (Ind. Ct. App. 2002)

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 8 of 11 (“Mother failed to show that she was free from fault and that her rights were

prejudiced by the denial” where, in part, she failed to move for a continuance

before the start of the hearing, despite being aware of the report, and never

objected to the custody evaluator’s report being admitted into evidence).

3. Child Support

[18] Finally, Father challenges the trial court’s modification of child support. He

claims that the trial court “abused its discretion when it relied upon evidence

that was too speculative to impute weekly gross income to Father of $1,000”

per week. Appellant’s Brief at 14. Specifically, he notes that Mother’s proposed

child support worksheet was unsigned and, therefore, could not properly be the

basis of the trial court’s support order.

[19] Decisions regarding child support generally rest within the sound discretion of

the trial court. Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 725 (Ind. Ct. App.

2009). We will reverse such a determination only if there has been an abuse of

discretion or the trial court’s determination is contrary to law. Id.

[20] Father directs us to cases in which this court has held that the trial court’s

reliance on an unsigned and unverified support worksheet was error. 5 See

Vandenburgh, 916 N.E.2d at 728 (“worksheets were improper because they were

5 Father also cites and relies heavily on a memorandum decision issued by this court. Ind. Appellate Rule 65(D) clearly provides that such a decision “shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.” Father’s appellate counsel shall take note of this rule for future cases.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 9 of 11 not signed or verified”); Cobb v. Cobb, 588 N.E.2d 571, 574 (Ind. Ct. App. 1992)

(basing child support order on unverified and unsigned worksheet was error

because use of such a worksheet “has no sanction under either the child support

guidelines or the rules of evidence and trial procedure”).

[21] Here, although modification of child support was clearly one of the issues to be

addressed at the hearing, neither Father nor Mother provided the trial court

with a verified worksheet. Mother, however, testified in some detail regarding

her (unsigned) proposed worksheet, which was admitted into evidence as

Exhibit 33. In addition to not objecting to this exhibit or Mother’s admittedly

speculative testimony regarding Father’s income, 6 Father did not cross-examine

Mother regarding this evidence or present contrary evidence during his own

lengthy testimony. Father testified that he is a realtor and part-time minister

and implied that he is in a better place financially than in the past, but he

offered no evidence concerning his current income.

[22] The trial court relied on Mother’s testimony and Exhibit 33, as that was the

only evidence admitted regarding Father’s income. Additionally, Mother

offered testimony and Exhibit 22 (the Schedule C from her 2017 federal tax

return) to support the income figure she used for herself in the proposed

6 During her testimony, Mother addressed the $1000 weekly income figure used for Father in her proposed worksheet. She acknowledged that she did not know exactly what Father earned but “would guess” that it was around $52,000 a year. Transcript at 85.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 10 of 11 worksheet. 7 Although trial courts should require verified child support

worksheets in every case, we conclude that Father’s failure to produce a

worksheet or any evidence in this regard, his failure to object to Exhibit 33 or

Mother’s related testimony, and his tacit agreement to proceed without a

verified worksheet constituted a waiver of his right to appeal the trial court’s

support order. See Butterfield v. Constantine, 864 N.E.2d 414, 417 (Ind. Ct. App.

2007) (father waived his right to appeal the trial court’s support order that relied

exclusively on an exhibit presented by mother without a verified worksheet).

[23] Judgment affirmed.

Kirsch, J. and Vaidik, C.J., concur.

7 Father also argues, without any supporting authority, that the trial court abused its discretion by not imputing additional income to Mother “to make up for her apparent voluntary underemployment”. Appellant’s Brief at 14. He baldly suggests that the trial court should have inquired “as to why Mother is no longer earning or capable of earning weekly gross income of $961.00” as she was at the time of the Decree. Id. at 15. This type of inquiry was up to Father, not the trial court, and Father wholly failed to raise the issue below. Accordingly, he cannot now be heard to complain.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019 Page 11 of 11