Pursuant to Ind. Appellate Rule 65(D), this 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.
Aug 12 2014, 9:06 am
ATTORNEY FOR APPELLANT: JOHN C. DRIER Plainfield, Indiana
IN THE COURT OF APPEALS OF INDIANA
TODD FIRKINS, ) ) Appellant, ) ) vs. ) No. 55A01-1311-DR-488 ) SHERYL FIRKINS, ) ) Appellee. )
APPEAL FROM THE MORGAN SUPERIOR COURT The Honorable Christopher Burnham, Judge Cause No. 55D02-1003-DR-96
August 12, 2014 MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge Todd Firkins (“Father”) appeals the Morgan Superior Court’s order modifying
child custody and parenting time and establishing Father’s weekly child support
obligation. Father raises several issues, which we consolidate and restate as:
I. Whether the trial court’s sua sponte questioning of Sheryl Firkins (“Mother”) transformed the impartial tribunal into an advocate for Mother;
II. Whether the trial court abused its discretion when it modified legal custody and awarded sole legal custody to Mother;
III. Whether the trial court abused its discretion in calculating Father’s child support obligation;
IV. Whether the trial court abused its discretion when it awarded both child dependency tax exemptions to Mother for the 2013 tax year; and,
V. Whether the evidence supports the restriction imposed on Father’s parenting time.
We reverse the trial court’s calculation of Father’s child support obligation and
remand with instructions to issue a corrected child support order, but affirm in all other
respects.
Facts and Procedural History
Mother and Father’s marriage was dissolved in May 2010. In their written
settlement agreement, the parties agreed to share joint physical and legal custody of their
two minor children. Neither party was ordered to pay child support, and they agreed to
equally share the tax dependency exemptions for the children. The parties alternated
physical custody of the children weekly.
However, in January 2011, Father moved from his residence, and Mother could
not locate him. Father failed to contact Mother or the children for six months. On some
2 date in June 2011, Father finally contacted Mother and established parenting time with
the children. However, the parties did not revert to their weekly alternating shared
physical custody arrangement. The parties eventually established a schedule where
Father exercised parenting time with the children every other weekend and one evening
per week.
Over Father’s objection, Mother enrolled the children in a Catholic school at the
start of the 2011-12 school year at her own expense. Mother did not believe that the
public school system was meeting their son’s special needs. Mother has noted substantial
improvement in the son’s academic progress since attending the Catholic school. The
parties’ daughter is an excellent student.
On April 10, 2013, Mother filed a petition to modify child support and custody. In
response, Father filed a motion to show cause why Mother should not be held in
contempt because she enrolled the children in Catholic school over his objection. The
trial court held a hearing on the parties’ pending motions on September 20, 2013.
Evidence presented at the hearing established that Mother resides with her
boyfriend and her children, including Mother’s three older children from prior
relationships, and has not been employed since 2009. Mother is a high school and
cosmetology school graduate. Mother receives social security survivor benefits on behalf
of two of her three older children. Father resides with his girlfriend. He is employed as a
machinist and earns $19 per hour. Father is able to obtain insurance for the children
through his employer at a cost of $30 per week.
3 On October 10, 2013, the trial court issued an order modifying child custody and
establishing Father’s child support obligation. The court awarded Mother sole legal and
sole physical custody of the children and awarded Father parenting time consistent with
the Indiana Parenting Time Guidelines, except that 1) Father may not have overnight
visitation with the children Sunday through Thursday when school is in session, 2) he is
“prohibited from operating a vehicle with the children on board until he has reinstated his
driver license and shown and maintains proof of financial responsibility to the BMV and
to [Mother]” and 3) he “must not be under the influence of any intoxicating or mood-
altering substances while the children are under his physical care during any parenting
time.” Appellant’s App. p. 10.
The trial court ordered Father to maintain medical insurance coverage for the
children and to pay $152 weekly in child support. The trial court also awarded Mother
the sole right to claim the children as dependents for tax purposes for the 2013 tax year,
but ordered that Father may claim one child for tax purposes for 2014 and thereafter, if he
is current in his child support payments.
Father now appeals. Additional facts will be provided as necessary.
Prima Facie Standard of Review
We note that Mother has not filed an appellee’s brief. When an appellee fails to
submit a brief, we do not undertake the burden of developing the appellee’s arguments,
and we apply a less stringent standard of review, that is, we may reverse if the appellant
establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006).
This rule was established so that we might be relieved of the burden of controverting the
4 arguments advanced in favor of reversal where that burden properly rests with the
appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002). However, we
review de novo questions of law, regardless of the appellee’s failure to submit a brief.
McClure v. Cooper, 893 N.E.2d 337, 339 (Ind. Ct. App. 2008).
I. Impartiality of the Trial Judge
The role of the trial judge is to serve as a neutral and passive arbiter. See Owens v.
State, 750 N.E.2d 403, 409 (Ind. Ct. App. 2001); see also Branham v. Varble, 952 N.E.2d
744, 747 (Ind. 2011) (recognizing trial judge role as neutral arbiter). A violation of due
process occurs where a trial judge combines the roles of judge and advocate. In re
Commitment of Roberts, 723 N.E.2d 474, 476 (Ind. Ct. App. 2000). However, the trial
judge may intervene in an effort to promote clarity or dispel obscurity, so long as it is
accomplished in an impartial manner. A.N. v. K.G., 3 N.E.3d 989, 995 (Ind. Ct. App.
2014). Importantly, a judge’s discretion to intervene is greater in bench trials than in
trials before juries. Ware v. State, 560 N.E.2d 536, 539 (Ind. Ct. App. 1990), trans.
denied.
Father argues that the trial court acted not as an impartial tribunal, but as an
advocate for Mother, when the court sua sponte questioned Mother. The trial court asked
questions about Mother’s address, the public school district the children would attend if
they did not attend Catholic school, Mother’s employment status, Mother’s current living
arrangement, and her other children from prior relationships. The purpose of these
inquiries was clarification of Mother’s prior testimony, and the trial court acted within its
discretion when it asked the questions.
5 The trial court also asked Mother whether Father ever explained his six-month
disappearance from the children’s lives from January 2011 to June 2011. Mother
responded that she and the children were never given a reason for Father’s absence. The
court also wanted to know if Father had ever been treated for mental illness, and Mother
responded in the negative. Mother was asked whether she knew where Father was
employed and if she had any information about his current living arrangement. Finally,
the court asked Mother additional questions about their son’s learning disability, the
services he receives from his school, his progress in school, and the student to teacher
ratio of the children’s Catholic school. Tr. pp. 33-38.
We agree these questions go beyond mere clarification, but the court’s inquiries
were aimed at providing the court with a complete picture of the parties’ circumstances
since the dissolution of their marriage. Trial judges are fact finders in dissolution,
custody and support proceedings and are called upon in those proceedings to make life-
changing decisions in the lives of children. It is therefore especially important in such
instances that they have a complete picture of the facts and circumstances at issue.
Moreover, Father failed to object to the trial court’s questions. A party’s failure to object
at trial results in waiver, unless error is fundamental, i.e. “a blatant violation of basic
principles rendering the trial unfair.” Davis v. State, 835 N.E.2d 1102, 1107 (Ind. Ct.
App. 2005), trans denied. Although these standards have been developed in Indiana’s
criminal law, we may apply the doctrine when considering a party’s failure to object to
alleged error in the civil context. See e.g. A.N., 3 N.E.3d at 994-95.
6 On the record before us, the trial court’s questions, seeking clarification of and
additional development of certain relevant and important facts, do not constitute
fundamental error. Moreover, and most importantly, the parties’ counsel were given the
opportunity to re-examine Mother after the trial court ended its inquiry. Tr. p. 38. For all
of these reasons, Father has not established that the trial court’s questions rendered the
bench trial unfair.
II. Custody Modification
Father next argues that the trial court abused its discretion when it modified legal
custody of the children because Mother agreed to joint legal custody and the evidence is
insufficient to support the modification.1 Where, as here, the trial court enters findings
and conclusions sua sponte, the specific findings control only as to the issues they cover,
while a general judgment standard applies to any issues upon which the trial court has not
found. Kietzman v. Kietzman, 992 N.E.2d 946, 948 (Ind. Ct. App. 2013). We may
affirm a general judgment on any theory supported by the evidence adduced at trial. Id.
The modification of a custody order lies within the sound discretion of the trial
court. Haley v. Haley, 771 N.E.2d 743, 747 (Ind. Ct. App. 2002). On appeal, we will
reverse a trial court’s decision only upon a showing of an abuse of discretion, which
occurs when the trial court’s decision is clearly against the logic and effect of the facts
and circumstances. Id. We do not judge witness credibility nor reweigh the evidence. Id.
We consider only the evidence which supports the trial court’s decision. Id. Moreover,
1 Father does not challenge the trial court’s modification of physical custody. 7 [a]ppellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.
Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)
We initially observe that an award of joint legal custody is governed by Indiana
Code section 31-17-2-15, which provides that the trial court should consider whether the
parties have agreed to an award of joint legal custody, in addition to the following
factors:
(1) the fitness and suitability of each of the persons awarded joint custody; (2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare; (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; (4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody; (5) whether the persons awarded joint custody: (A) live in close proximity to each other; and (B) plan to continue to do so; and (6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
In the initial custody determination, both parents are presumed equally entitled to
custody, but a petitioner seeking subsequent modification bears the burden of
demonstrating that the existing custody arrangement should be altered. Green v. Green,
843 N.E.2d 23, 29 (Ind. Ct. App. 2006). A 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 a court may consider under Indiana Code section 31-
8 17-2-8 when it originally determines custody. See Ind. Code § 31-17-2-21. These
factors are:
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. (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. . . .
I.C. § 31-17-2-8.
In this case, when their marriage was dissolved, the parties agreed that they would
share joint legal and physical custody of the children. In her petition to modify custody,
Mother sought only sole physical custody. At the hearing, Mother testified that she was
“okay” with joint legal custody. Tr. p. 13. Yet, the trial court found that it was in the
best interests of the children for Mother to “be the legal and primary physical custodian
of the children.” Appellant’s App. p. 9.
Father’s argument that the trial court erred because Mother acquiesced to
continued joint legal custody is unavailing. The welfare of the parties’ children is of
paramount concern when determining whether a custody modification is in their best
interests. See In re Paternity of J.M., 766 N.E.2d 1203, 1209 (Ind. Ct. App. 2002)
9 (stating “[t]he welfare of the child, not the wishes and desires of the parents, is the
primary concern of the courts”).
Moreover, the evidence is sufficient to support modification of legal custody
solely to Mother. In January 2011, Father disappeared from the children’s lives for six
months, without any prior or subsequent explanation. Mother has made all decisions
concerning the children’s welfare since that date. Father never formally objected to any
of Mother’s decisions concerning the welfare of the children until after Mother filed her
petition to modify custody and support.
Mother made the decision to place the children in a private catholic school at her
own expense because of the parties’ son’s learning disability. Mother did not believe the
public school was meeting his needs. The parties’ son has progressed academically in the
smaller, private school environment. Father objects to the children’s enrollment in the
school on theological grounds, but the trial court observed:
[Father] could not point to any defects in the academic curriculum, teacher to student ratios, ISTEP test scores or school rating of the school to support any other criteria to reject [Mother’s] plan to enroll the children in a better school, at her expense, for the children’s best interests.
Appellant’s App. p. 9.
Father has demonstrated more stability in his life in the past two years. He has
obtained steady employment and more stable living arrangements. However, in late 2009,
during the dissolution proceedings, Father was convicted of operating a vehicle while
intoxicated. His driver’s license was suspended for two years, and as of the date of the
modification hearing almost three years later, he had not had his license reinstated. Tr. p.
10 77. Demonstrating continued bad judgment, Father has been driving without a license
and he did not tell Mother that his license was suspended. Mother first learned that
Father has been driving without a license with the children in his vehicle at the
modification hearing. Tr. p. 78. Presumably, Father also lacks car insurance because he
does not have a valid driver’s license. Tr. p. 81.
For all of these reasons, we conclude that the trial court’s modification of legal
custody solely to Mother is supported by sufficient evidence and is in the children’s best
interests.
III. Child Support
Father argues that the trial court erred when it calculated his child support
obligation because the court failed to impute income to Mother in the amount of $20,000,
and failed to give him credit for the health insurance premium he was ordered to pay for
the children. Child support calculations are made using the income shares model set
forth in the Indiana Child Support Guidelines (“Guidelines”). Sandlin v. Sandlin, 972
N.E.2d 371, 374 (Ind. Ct. App. 2012). The Guidelines apportion the cost of supporting
children between the parents in accordance with their means, based upon 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. Id. A trial court’s calculation of
child support under the Guidelines is presumptively valid and we will reverse a decision
in child support matters only if it is an abuse of discretion, that is, when the trial court
misinterprets the law or the decision is clearly against the logic and effect of the facts and
circumstances that were before the court. Id.
11 A. Mother’s Income
The trial court may impute income to a parent for purposes of calculating child
support upon determining that he or she is voluntarily unemployed or underemployed. Id.
at 375 (citing In re Paternity of Buehler, 576 N.E.2d 1354, 1355-56 (Ind. Ct. App. 1991)).
The Guidelines permit imputation to discourage parents from avoiding significant child
support obligations by becoming unemployed or taking a lower paying job; however, the
Guidelines do not require that parents work to their full economic potential. Id.
Here, it is undisputed that Mother is voluntarily unemployed. She testified that
she was last employed in 2009, and her income was $20,000 while working part-time.
For this reason, the trial court imputed income to Mother in the amount of $290 per week
(or $15,080 annually). At the hearing and on his child support worksheet, Father
requested that the trial court impute $290 per week to Mother. Tr. p. 68; Ex. Vol.,
Respondent’s Ex. C. Because the trial court imputed income to Mother in the amount
Father requested, Father cannot now complain that the court should have imputed
additional income to Mother. See Reinhardt v. Reinhardt, 938 N.E.2d 788, 791 (Ind. Ct.
App. 2010) (stating that “[u]nder the invited error doctrine, a party may not take
advantage of an error that he commits, invites, or which is the natural consequence of his
own neglect or misconduct “).
B. Health Insurance Premium
During the hearing, Father testified that health insurance is available for the
children through his employer, and that he could enroll the children on his insurance plan.
After the hearing, at the request of the trial court, Father submitted evidence to the court
12 that the cost for the children’s portion of Father’s health insurance premium is
approximately $30 per week. See Appellant’s App. p. 10. Although the health insurance
premium worksheet was completed by the trial court, the premium amount was not
included in the calculation of Father’s child support obligation. See id. at 12, 14.
The Child Support Guidelines provide that, generally, a parent should receive a
health insurance credit in an amount equal to the premium cost the parent actually pays
for a child’s health insurance. Julie C. v. Andrew C., 924 N.E.2d 1249, 1261 (Ind. Ct.
App. 2010); see also Ind. Child Support Guideline 3(E)(2). The trial court failed to credit
Father for this expense; therefore, we reverse the trial court’s child support calculation
and remand for a recalculation of Father’s weekly child support obligation after credit is
given for the children’s health insurance premium. See Ashworth v. Ehrgott, 934 N.E.2d
152, 162 (Ind. Ct. App. 2010).
IV. Tax Exemptions
In their dissolution agreement, the parties agreed that Mother would claim the
parties’ daughter and Father would claim the parties’ son for all State and Federal tax
exemption purposes each year. Appellant’s App. p. 18. Father argues that the trial court
abused its discretion when it modified their agreement by awarding both tax dependency
exemptions to Mother for the 2013 tax year.
“26 U.S.C. § 152(e) (2000) automatically grants a dependency exemption to a
custodial parent of a minor child but permits an exception where the custodial parent
executes a written waiver of the exemption for a particular tax year.” Quinn v. Threlkel,
13 858 N.E.2d 665, 675 (Ind. Ct. App. 2006). Under certain circumstances, the trial court
may order the custodial parent to sign a waiver of the dependency exemption. Id.
The Indiana Child Support Guidelines were developed without taking into
consideration the award of the dependency exemption. Id. The Guidelines instruct trial
courts to review each case on an individual basis, but recommend, at a minimum,
consideration of the following five factors:
(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); and (6) the financial burden assumed by each parent under the property settlement in the case.
Ind. Child Supp. G. 9. When considering these factors, a trial court’s equitable discretion
should be guided primarily by the goal of maximizing the amount of support available to
the child. Harris v. Harris, 800 N.E.2d 930, 941 (Ind. Ct. App. 2003), trans. denied. In
addition,
If a court determines that a parent who is ordered to pay child support may claim the child as a dependent under subsection (a), the court shall include in the order that the parent may only claim the child as a dependent for federal and state tax purposes if the parent has paid at least ninety-five percent (95%) of the parent’s child support for the calendar year for which the parent is ordered to claim the child as a dependent by January 31 of the following year.
Ind. Code § 31-16-6-1.5(d).
When their marriage was dissolved, the parties agreed to joint physical custody
and each party had custody of the children in alternating weeks. Further, they agreed that
14 each parties’ child support obligation would be $0 per week and that they would share the
tax exemptions for the children.
However, as we have noted above, Father abandoned the children for six months
in 2011, and the parties never resumed their shared custody arrangement after he re-
entered the children’s lives. Mother has assumed sole physical custody of the children,
and therefore the accompanying financial cost, since January 2011. For this reason, we
cannot conclude that the trial court erred when it awarded the tax dependency exemptions
for both children to Mother for the 2013 tax year.
The trial court also ordered that Father may claim one child for tax purposes for
2014 and thereafter, if he is current in his child support payments. In accord with section
31-16-6-1.5(d), the court defined “current” as “95% of total child support obligation for
that tax year paid as of the deadline of Dec. 30th[.]” Appellant’s App. p. 10.
For all of these reasons, we conclude that the trial court acted within its discretion
when it awarded both tax dependency exemptions to Mother for the 2013 tax year.
V. Parenting Time Restriction
Finally, we address Father’s claim that the trial court improperly placed a
restriction on his parenting time. We review and will reverse a trial court’s determination
of a parenting time issue only for an abuse of discretion. Shady v. Shady, 858 N.E.2d
128, 143 (Ind. Ct. App. 2006), trans. denied. On appeal, we will not reweigh the
evidence or judge witness credibility. Id. “In all parenting time controversies, courts are
required to give foremost consideration to the best interests of the child.” Id.
15 Father does not challenge the parenting time awarded, but only the restriction that
he “must not be under the influence of any intoxicating or mood-altering substances
while the children are under his physical care during any parenting time.” Appellant’s
App. p. 10. Father correctly observes that the only evidence of his alcohol consumption
was testimony concerning his 2009 operating a vehicle while intoxicated conviction.
Therefore, he argues that “[r]estricting [Father’s] parenting time with his children such
that he cannot even have a beer in their presence was clear error.” Appellant’s Br. at 13.
Father argues that a “parent’s unrestricted time with his children is presumed to be
in their best interest.” Id. (citing Perkinson v. Perkinson, 989 N.E.2d 758 (Ind. 2013)).
We can logically conclude that if a parent is under the influence of intoxicating
substances during his or her parenting time, his or her child(ren)’s physical and/or mental
health are likely endangered. The challenged restriction on Father’s parenting time is
simply common sense. No reasonable person could conclude that it is the children’s best
interests for Father to be under the influence of intoxicating substances during his
parenting time. For these reasons, we conclude that the trial court’s restriction on
Father’s parenting time is reasonable, particularly in light of his prior operating a vehicle
while intoxicated conviction.
Conclusion
The trial court abused its discretion only when it failed to include the weekly $30
health insurance premium in its calculation of Father’s weekly child support obligation.
We affirm the trial court in all other respects.
16 Affirmed in part, reversed in part, and remanded for a recalculation of Father’s
child support obligation.
FRIEDLANDER, J., and PYLE, J., concur.