T.M. v. D.W. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 30, 2015
• Docket: 48A02-1407-JP-457
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 30 2015, 10:04 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas N. Leslie Kathleen M. Meek Indianapolis, Indiana Justin T. Bowen Bowen & Associates Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

T. M., April 30, 2015

Appellant-Defendant, Court of Appeals Case No. 48A02-1407-JP-457 v. Appeal from the Madison Circuit Court

D.W., Cause No. 48C02-1307-JP-170 The Honorable G. George Pancol, Appellee-Plaintiff Judge.

Friedlander, Judge.

[1] T.M. (Mother) appeals the trial court’s paternity order, which established

custody and support. She presents the following restated issues for review:

1. Did the trial court abuse its discretion when it refused Mother’s request for attorney fees?

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 1 of 10 2. Is D.W. (Father) still bound by a preliminary order requiring him to pay the cost of Mother’s initial drug testing and evaluation, which he has not paid? On cross appeal, Father raises the following restated issue:

3. Did the trial court err in calculating Father’s parenting time credit by failing to include all overnights? [2] We affirm and remand.

[3] Child was born September 30, 2008, and lived with Mother and Father at

Father’s residence in Anderson until Mother moved out with Child on June 17,

2013. Mother moved her and Child’s belongings out of the residence without

any notice to Father and while he was at work. Eric Goodwin rented a truck

and assisted with the move to Goodwin’s home in Franklin, about an hour

away. Goodwin and Mother continue to reside together and plan to marry.

[4] On July 17, 2013, Father filed a Consolidated Verified Emergency Petition to

Establish Paternity, Child Custody, and Child Support. The trial court held a

brief hearing on September 5, 2013, at which the parties stipulated to Father’s

paternity of Child. In its provisional order, the court granted the parties joint

legal custody, Mother primary physical custody, and Father parenting time

pursuant to the Indiana Parenting Time Guidelines except that he would have

Child every weekend. Per Father’s request, the court also ordered the parties to

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 2 of 10 submit to substance abuse evaluation and drug testing. The court ordered

Father to select a provider and pay for these initial costs for both parties.1

[5] The final hearing regarding custody and support took place on December 2,

2013 and April 2, 2014. Father presented evidence that he owns his own home

and has been employed with the same company for approximately twenty

years. He works about fifty hours per week and has an average weekly gross

income of $1129. With respect to Mother, evidence was presented that she is a

server at a restaurant in Franklin and works varying shifts, including double

shifts on the weekends. She grosses about $450 per week. She lives with

Goodwin in a home of which he has granted her part ownership.

[6] During her presentation of evidence, Mother testified that Father had not paid

for the initial substance abuse evaluation and testing, as previously ordered by

the court. She submitted the unpaid bill, which she indicated she continued to

receive in the mail. Mother requested that the court order payment by Father.

Additionally, Mother submitted evidence regarding the amount of her attorney

fees (approximately $16,000). Father stipulated to this evidence without the

need for Mother’s attorney to testify regarding the amount and its

reasonableness. Mother requested that the court order Father to pay her

attorney fees.

1 Mother’s test results were submitted to the court on October 31, 2013. She tested “negative for over twenty- two drugs, including cocaine, opiates, synthetic opioids (methadone), amphetamines and others.” Appellant’s Appendix at 10.

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 3 of 10 [7] At the conclusion of the hearing, the trial court took the matter under

advisement and gave the parties thirty days to file proposed findings and

conclusions. The CCS reflects that the parties filed proposed orders, but the

filings have not been included in the record before us. On May 12, 2014, the

trial court issued its order. The court left the custody arrangement unchanged,

ordered Father to pay $112 per week in child support, determined the arrearage,

and directed the parties to pay their own attorney fees. Mother filed a motion

to correct error on June 5, 2014, which was summarily denied. Mother now

appeals.

[8] When a trial court issues specific findings of fact and conclusions of law

pursuant to Indiana Trial Rule 52, as in this case, we apply a two-tiered

standard of review. Without reweighing the evidence or assessing the

credibility of witnesses, we must determine “whether the evidence supports the

findings and whether the findings support the judgment.” Tompa v. Tompa, 867

N.E.2d 158, 163 (Ind. Ct. App. 2007). We will not set aside the trial court’s

findings or conclusions unless they are clearly erroneous—that is, if they are

unsupported by any facts and inferences contained in the record. Tompa v.

Tompa, 867 N.E.2d 158. We will find the judgment to be clearly erroneous if

we are left with a firm conviction that there has been a mistake. Id. Further, if

the findings and conclusions entered by the trial court are clearly inconsistent

with the judgment, “the decision must be set aside regardless of whether there

was evidence adduced at trial which would have been sufficient to sustain the

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 4 of 10 decision.” Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008) (quoting

McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1252 (Ind. 1994)).

1.

[9] Mother claims that the trial court erred in rejecting her request to order Father

to pay her attorney fees and notes that the court made no findings of fact

supporting its decision. According to Mother, she is entitled to attorney fees

due to the large disparity of income between the parties.2

[10] When determining whether to award attorney fees, a trial court must consider

the resources of the parties, their relative earning ability, and other factors

bearing on the reasonableness of the award. See Connolly v. Connolly, 952

N.E.2d 203 (Ind. Ct. App. 2011). We review a trial court’s decision regarding

attorney fees for an abuse of discretion. Id. Further, “a trial court is not

required to give reasons for its determination.” Id. at 208.3

[11] Ind. Code Ann. § 31-14-18-2(a) (West, Westlaw current with all legislation of

the 2015 1st Regular Session of the 119th General Assembly effective through

2 Mother also argues that Father’s conduct during the proceedings created additional legal expenses for her. She asserts that “while there was no official misconduct, the lengthiness of these proceedings was brought on by Father’s lack of evidence and failure to adequately present his case for want of expert opinion testimony.” Appellant’s Brief at 13. We find this argument, which was not raised below, unsupported by the record and meritless. 3 In support of her apparent assertion that the trial court was required to explain its decision, Mother relies on Masters v. Masters, 20 N.E.3d 158 (Ind. Ct. App. 2014). We observe, however, that the Indiana Supreme Court granted transfer in Masters on April 2, 2015. Accordingly, the appeals court decision has been vacated and has no precedential value. See Barth v. Barth, 693 N.E.2d 954 (Ind. Ct. App. 1998), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 5 of 10 March 24, 2015) provides that the trial court may order a party to pay a

reasonable amount for the opposing party’s attorney fees.4 The statute,

however, does not affirmatively require the trial court to award attorney fees.

As we have previously observed in this context, “[t]here is no abuse of

discretion for the trial court not to do that which it is not required to do.” Russell

v. Russell, 693 N.E.2d 980, 984 (Ind. Ct. App. 1998), trans. denied. See also

Tompa v. Tompa, 867 N.E.2d 158.

[12] Mother argues that she is entitled to attorney fees because Father’s income

significantly exceeds hers. “While disparity of income may be considered in

awarding attorney fees, a trial court is not required to award fees based on

disparity of income alone.” Russell v. Russell, 693 N.E.2d at 984. Because the

trial court was not affirmatively required to award attorney fees under I.C. § 31-

14-18-2, it did not abuse its discretion by denying Mother’s request.

2.

[13] Mother contends that the trial court should have included in its final order a

judgment for the court-ordered drug testing and evaluation costs that Father

had been previously ordered to pay, yet remained unpaid at the time of the final

hearing.5 Father, however, claims that his obligation to pay under the

4 This statute is substantially similar to that applied in the dissolution context. Accordingly, we may rely on authority from both paternity and dissolution cases. 5 Mother’s appellate and reply briefs both have a page missing in this portion of her argument. We advise counsel to be more cautious before filing briefs before this or any other court.

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 6 of 10 provisional order was “merged and extinguished by the final Order.” Appellee’s

Brief at 14.

[14] In general, a provisional order terminates when the final decree is entered.

Mosser v. Mosser, 729 N.E.2d 197 (Ind. Ct. App. 2000). “Nevertheless, an

obligation accrued prior to the final decree survives.” Id. at 200 n.3.

[15] Here, the provisional order provided, with respect to drug testing, as follows:

“The parties are to both submit to substance abuse evaluation and drug testing.

The Father will pay the initial cost of these evaluations and tests. The Father

will select the provider. The Mother will then make arrangements and

appointments within thirty days.” Appellant’s Appendix at 6. The evidence

establishes that after Father selected the provider, Mother completed the initial

evaluation and testing on October 30, 2013.6 Five months later, Mother

testified at the final hearing that she continued to receive unpaid bills related to

this testing, and she submitted into evidence one such bill that she had received

in the mail. Mother asked the trial court to order Father to pay the amount due

for the initial drug testing and evaluation.

[16] The bill from Ameritox reflects laboratory services received by Mother on

October 30, 2013, in the total amount of $1012.35. Father claims that his

6 Father notes that Mother’s drug testing occurred thirty-four days after he notified her of the provider. He claims that the delayed testing “voided even Father’s minimal requirement to be initially responsible for the cost.” Appellee’s Brief at 16. Father did not assert this argument below and offers no authority for it on appeal. Moreover, we observe that the order is vague, requiring Mother to “make arrangements and appointments within thirty days” rather than requiring her to submit to testing within that time.

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 7 of 10 hearsay objection to this evidence was improperly rejected by the trial court

because the bill was submitted to establish the amount due. Regardless of the

amount, Mother’s testimony establishes that Father failed to pay the bill as

ordered by the trial court. Further, our Supreme Court has indicated that

“[m]edical bills already charged can usually be admitted over any hearsay

objection either through testimony of the supplier… or through testimony of the

patient”. Cook v. Whitsell-Sherman, 796 N.E.2d 271, 278 (Ind. 2003). Cf. Barrix

v. Jackson, 973 N.E.2d 22, 29 (Ind. Ct. App. 2012) (bills inadmissible hearsay

where not admitted as a business record and proponents “also failed to adduce

testimony from [patient] that laid any form of foundation for admissibility of

the bills based upon her memory of having received those bills for treatment”),

trans. denied.

[17] We remand this cause to the trial court so that it may amend its final decree to

include an order directing Father to pay the costs of Mother’s initial drug

testing and evaluation.

3.

[18] On cross appeal, Father contends that the trial court erred in calculating child

support because it only credited him with 102-105 overnights per year.

According to Father, the parenting time credit should have been calculated

using 134 overnights.

[19] A trial court’s calculation of child support under the Indiana Child Support

Guidelines (the Guidelines) is presumptively valid. Young v. Young, 891 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 8 of 10 1045. We will reverse a trial court’s decision with respect to child support

matters only if it is clearly erroneous or contrary to law. Id.

[20] Indiana Child Support Guideline 6 provides that “[a] credit should be awarded

for the number of overnights each year that the child(ren) spend with the

noncustodial parent.” The commentary to Guideline 6 provides that the

computation of this credit “will require a determination of the annual number

of overnights of parenting time exercised by the parent who is to pay child

support, the use of the standard Child Support Obligation Worksheet, a

Parenting Time Table, and a Parenting Time Credit Worksheet.” The

commentary further provides that a non-custodial parent exercising parenting

time pursuant to the Guidelines, without extending the weeknight period into

an overnight, will have approximately 98 overnights.

[21] In this case, the trial court determined that Father’s annual overnights will be

between 101 and 105, as he had been awarded parenting time in excess of the

Guidelines (every weekend rather than every other weekend). Father’s

assertion that he should have been credited with 134 overnights is neither

supported by the record nor adequately explained on appeal.

[22] We observe that Father has failed to provide us with the proposed child support

worksheet, parenting time credit worksheet, or findings that he submitted to the

trial court, and the number of overnights claimed by Father was not addressed

at the hearing. On appeal, Father supports his claim that he is entitled to 134

overnights with a simple footnote:

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 9 of 10 The number of overnights for the extra weekend has been adjusted to account for Mother’s summer and holiday parenting time, of approximately eight weeks. The Court can take judicial notice of the fact of the number of overnights awarded to Father. Ind. Evidence Rule 201. Appellee’s Brief at 18 n.1.

[23] Father’s explanation in his appellate brief as to how he calculates a parenting

time credit based on 134 overnights is entirely inadequate. Additionally, our

own crude calculations, based on admittedly incomplete information, result in

overnights closer to the trial court’s determination than Father’s. With the

limited record before us, we cannot conclude that the trial court’s determination

regarding overnights is clearly against the logic and effect of the facts and

circumstances before it. Father has failed to establish error.

[24] We affirm and remand.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 10 of 10