Michael Farrell v. Elva Farrell (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be Feb 15 2018, 9:06 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Julie A. Camden Steven A. Holt
Camden & Meridew, P.C. Holt Legal Group
Fishers, Indiana Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Farrell, February 15, 2018
Appellant-Petitioner, Court of Appeals Case No.
29A05-1709-DR-2045
v. Appeal from the Hamilton
Superior Court
Elva Farrell, The Honorable Steven R. Nation,
Appellee-Respondent. Judge
Trial Court Cause No.
29D01-1602-DR-1499
Brown, Judge.
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[1] Michael Farrell (“Father”) appeals from the trial court’s decree of dissolution
and raises issues related to the court’s orders with respect to child custody, the
division of marital property, the parenting coordinator, child support, and
spousal maintenance. We affirm in part, reverse in part, and remand.
Facts and Procedural History
[2] Father and Elva Farrell (“Mother”) were married in February of 1998 and have
seven minor children, two of whom have special medical needs. On February
19, 2016, Father filed a petition for dissolution. In March 2016, the court
entered a preliminary order stating in part that the parties agreed to have joint
legal custody and Mother would have physical custody, Father would receive
parenting time including two of the children overnight at his residence every
other Saturday, Mother would continue to use the joint credit card to pay for
the children’s needs and Father would pay the balance each month in lieu of
child support, Father would provide Mother with two hundred dollars each
week, and Mother would receive an early distribution of $20,000. Each of the
parties later asked the court to find the other party in contempt. On December
1, 2016, at Father’s request, the court appointed a parenting coordinator, Dr.
Randy Krupsaw, and ordered Father to pay the cost of the coordinator’s
services.
[3] On August 28, 2017, the court issued a thirty-two-page decree of dissolution
containing findings and conclusions and attached a child support obligation
worksheet. The decree ordered the parties to continue to share joint legal
custody and that Mother would have physical custody of the children. With
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respect to the division of the marital property, the court determined that “the
marital estate should be split 60/40.” Appellant’s Appendix Volume 2 at 66.
The court also entered findings regarding parenting time and the parenting
coordinator, child and educational support, spousal maintenance, the motions
for contempt, and attorney fees. Father appeals from the dissolution decree.
[4] On September 20, 2017, Mother filed a motion to clarify certain findings in the
decree. Father filed an objection arguing the trial court did not have
jurisdiction to consider Mother’s motion to clarify. The court entered a Judge’s
Entry of October 13, 2017, stating that Mother’s motion to clarify was denied
and “[t]he Court will not rule until the appeal is completed or if the appeal is
stayed and remanded to the Court so the Court may reconsider or clarify.”
Appellee’s Appendix Volume 2 at 17. On November 6, 2017, Father filed an
emergency motion to appoint Darin Elizabeth Cox as the parenting coordinator
and to order that Father have custody, and the court entered a Judge’s Entry of
November 13, 2017, stating it would not rule until the appeal is completed or
the appeal is stayed. On November 16, 2017, Father filed an amended
emergency motion to appoint Cox as the parenting coordinator which stated
that Dr. Krupsaw notified the parties and the court that he was withdrawing
from the case, that the court’s December 1, 2016 parenting coordinator order is
not being appealed, and that the court may appoint a new parenting
coordinator. The court signed a Judge’s Entry of December 6, 2017, which
states that the parties appeared telephonically by counsel on Father’s amended
emergency motion, that the court “agreed to appoint Darin Elizabeth Cox as
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the new Parenting Coordinator if the parties can agree as to the scope of her
responsibilities,” and “[i]f the parties cannot agree, parties shall submit to the
Court their requests and any objections concerning the responsibilities of the
Parenting Coordinator.” Judge’s Entry of December 6, 2017.
Discussion
[5] Father challenges various findings and orders in the trial court’s dissolution
decree related to child custody, division of the marital property, the parenting
coordinator, child support, and spousal maintenance. Where a trial court
enters findings of fact and conclusions of law, first we determine whether the
evidence supports the findings, and second we determine whether the findings
support the judgment. Lechien v. Wren, 950 N.E.2d 838, 841 (Ind. Ct. App.
2011). We will set aside the trial court’s specific findings only if they are clearly
erroneous, that is, when there are no facts or inferences drawn therefrom to
support them. Id. A judgment is clearly erroneous when a review of the record
leaves us with a firm conviction that a mistake has been made. Id. We neither
reweigh the evidence nor assess the credibility of witnesses, but consider only
the evidence most favorable to the judgment. Id. The findings control only as
to the issues they cover, and a general judgment standard applies to issues upon
which the trial court made no findings. Id.A. Legal Custody
[6] Father first argues that the trial court’s findings do not support an award of joint
legal custody. He argues that the court’s findings indicate the parties are not
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willing and able to communicate and cooperate in advancing the children’s
welfare. He also notes the court’s contradictory statements that the parties
share legal custody but that Mother would have sole custody for purposes of
final decision-making. Mother responds that the court did not find either party
to be in contempt, the evidence is undisputed that both parties care about their
children, and that Father has not shown he is capable of caring for the seven
children while working full time.
[7] Child custody determinations fall squarely within the discretion of the
dissolution court and will not be disturbed except for an abuse of discretion.
Gonzalez v. Gonzalez, 893 N.E.2d 333, 335 (Ind. Ct. App. 2008). Ind. Code § 31-
17-2-13 provides that “[t]he court may award legal custody of a child jointly if
the court finds that an award of joint legal custody would be in the best interest
of the child.” Ind. Code § 31-17-2-15 provides:
In determining whether an award of joint legal custody under
section 13 of this chapter would be in the best interest of the
child, the court shall consider it a matter of primary, but not
determinative, importance that the persons awarded joint
custody have agreed to an award of joint legal custody. The
court shall also consider:
(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;
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(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.
[8] “‘Joint legal custody’, for purposes of . . . IC 31-17-2-13 . . . and IC 31-17-2-15,
means that the persons awarded joint custody will share authority and
responsibility for the major decisions concerning the child’s upbringing,
including the child’s education, health care, and religious training.” Ind. Code
§ 31-9-2-67.
[9] The trial court found that each of the parties requested sole legal custody of the
children. Father’s request was based on his contention that Mother was
restricting and trying to eliminate his parenting time, and Mother asserted that,
because she does not have employment outside the home, she is in the best
position to provide daily care and manage the extensive medical and school
appointments as she has done for the parties’ entire marriage.
[10] The court noted that a custody evaluator testified that Mother was an alienator,
that this was emotional abuse to the children, and found that if her behavior
continues Father should have sole physical and legal custody of the children. It
noted that the evaluator stated that Mother is a hostile person who competes
with others and is resentful, is high-conflict and places the children in a loyalty
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bind, and interferes with Father’s parenting time. The court found that Mother
uses intimidation tactics, the children fear her anger, she has unrealistic
standards and lacks empathy, and she causes a struggle for Father to exercise
parenting time. The court noted that Dr. Krupsaw’s testimony that “‘we might
need one decision maker’ after he testified Mother had made significant
unilateral medical decisions.” Appellant’s Appendix Volume 2 at 52. The
court found that the significant medical conditions of two of the children
require Mother’s management of numerous medical appointments, therapies,
and care. Mother has been a homemaker since 1998 when she married Father.
[11] The court noted that Mother contended Father disregarded the children’s
feelings and medical needs exemplified by his aloofness regarding a lost dog, his
sending the children to church by themselves, his taking one of the children out
of lunch at school to record him and question him about Mother’s behavior, his
disregard of an allergic reaction and medical condition of another child, and his
disregard for one of his children’s reputation and feelings by going to the child’s
work and questioning his managers about the child’s work schedule. The court
noted that Father’s testimony that he did not even consider how the child
would feel if Father went to the child’s work speaking about family concerns. It
found that Father has never at any time in his or the children’s lives had full-
time responsibility of all seven children at once and has never shown that he has
the capability of doing so. The court further found that Father does not have
any pathology, has been involved with homework, school, church, coaching,
and transportation, thinks rationally and has good insight, and watched one of
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the children for seven of eight months while Mother was in Ecuador. It found
that Father has obtained another van, has handicap equipped his home, is able
to care for the children, can follow rules and supports Mother and the rules.
[12] The court ordered Father and Mother to adopt a responsible policy regarding
the making of decisions with respect to the children, that they mutually share in
all parental responsibilities and decision-making for the children except for
routine decisions, and that other decisions will be made only after a
consultation between the parties except in the case of an emergency, and that if
the parents disagree on non-routine decisions they will consult with the
parenting coordinator. The court set forth orders regarding the scheduling of
appointments and school activities. Although each party requested the court to
find the other in contempt, the court declined to find either in contempt. We
cannot say that the trial court’s findings, including its findings regarding the
parties’ respective roles in parenting, behavior, and decision-making, as well as
the fact the court did not find either party in contempt, do not support its
decision to award the parties joint legal custody of the children.
[13] Although we do not disturb the court’s award of joint legal custody, we observe
the decree states that “[t]he parties shall consult with each other through
meeting with the Parenting Coordinator, and reach agreements on any issues
regarding the minor children specifically, but not limited to, the children’s
health, care, education, and religious training, with Mother having sole custody for
purposes of final decision making.” Appellant’s Appendix Volume 2 at 68
(emphasis added). Also, we note that the court, in Paragraph 50 of the decree,
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found that Mother “will not be held in Contempt at this time in the hope that
the parties may proceed for the best interests of the children, except as a
sanction for [Mother’s] contempt, [Father] shall have the final decision on any joint
legal decisions if the parties cannot agree” and, “[i]f [Mother] disagrees with
[Father’s] decisions, she can discuss it with Dr. Krupsaw, after discussing with
[Father] in writing.” Id. at 46 (emphasis added). We remand for an amended
order which does not grant either party decision-making authority inconsistent
with the award of joint legal custody and, as the court did not find Mother in
contempt, does not impose sanctions for contempt.
B. Findings Regarding the Parenting Coordinator and Overnights
[14] Father claims the trial court abused its discretion in ordering him to pay the
costs of the parenting coordinator and in delegating the determination of
additional parenting time to the parenting coordinator. The trial court found
that Mother does not have employment or an income and has primary physical
custody of the children. We cannot say the court abused its discretion in
ordering Father to pay the costs of the parenting coordinator under the
circumstances. The court entered a parenting coordinator order on December
1, 2016, at Father’s request which appointed Dr. Krupsaw as the coordinator
and set forth the coordinator’s obligations and authority, specifically ordering
that the coordinator shall not exercise judicial authority. In the decree, the
court provided that Father would continue to have alternating weekends of
parenting time and mid-week parenting time as described in its preliminary
orders and that Father would have additional parenting time as directed by the
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parenting coordinator so as to strengthen the children’s bond with him.
However, in its December 6, 2017 order, after Father noted that Dr. Krupsaw
had notified the parties and the court that he was withdrawing from the case,
the trial court appointed Cox as the new parenting coordinator “if the parties
can agree as to the scope of her responsibilities” and ordered that, if they could
not agree, the parties shall submit their requests and objections and the court
would enter a ruling. Judge’s Entry of December 6, 2017.
[15] Father also argues that he was awarded 183 overnights and that it was error to
award Mother physical custody when the parties have equal overnights, and
that the decision is contrary to the best interests of the children and the
evidence. Mother responds that Father was given 183 overnights for purposes
of calculating his support obligation and that the designation was not a
determination of parenting time. The preliminary order of March of 2016,
states that the parties agreed that Husband “shall come to the house every other
Saturday to exercise parenting time with the children from 8am to 4pm” and
that “every other Saturday, [Father shall] have two children overnight at his
residence overnight.” Appellant’s Appendix Volume 2 at 71. The decree
provided in part that Father would continue to have alternating weekends of
parenting time and mid-week parenting time. Mother has been a full-time
homemaker since 1998 when she married Father, Father is a mortgage broker
and has employees, and the court found that Father has not had full-time
responsibility of all seven children at once. Further, the decree orders that, “for
child support purposes, . . . Father should receive credit for 183 overnights.” Id. at
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59 (emphasis added). We cannot say that the decree effectively awarded Father
joint or shared physical custody of the children or that the court erred or abused
its discretion in awarding Mother physical custody of the children.
C. The Trial Court’s Division of the Marital Property
[16] Father challenges the trial court’s division of the marital estate and argues there
is no basis for the court’s division and it erred in identifying and determining
the value of certain property. He argues that these errors, together with the
court’s order that he pay certain expenses incurred by Mother, resulted in
awarding Mother most of the marital property.
1. Basis for Division
[17] The dissolution decree provides:
Indiana Dissolution cases are brought in equity and the
presumption is for a 50/50 or equal split of the marital property.
However, where one party is unable to work due to disability or
lack of education or responsibility for caring for a disabled child,
the 50/50 presumption is often varied. With consideration for
the facts of this case, [Mother] would request a 70/30 split of the
marital estate for the reasons outlined above. The Court would
find, though, that the marital estate should be split 60/40.
Id. at 66. The decree contains a schedule of the parties’ assets including their
real estate, personal property, vehicles, bank and retirement accounts, a
business checking account, and business fixtures and equipment and divides the
property between the parties.
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[18] Father asserts the record is devoid of evidence that Mother is unable to work
due to a disability or a lack of education, states that according to the custody
evaluation Mother completed two and one-half years of college studying
economics, cites to the testimony of a nurse and argues the parties have a nurse
who is with their child four to five days a week and that Mother can work while
the nurse watches the child, and claims that, “[a]s such, there was no basis for a
60/40 split.” Appellant’s Brief at 19.
[19] The division of marital property is within the sound discretion of the trial court,
and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d
1005, 1012 (Ind. Ct. App. 2014). When we review a claim that the trial court
improperly divided marital property, we must consider only the evidence most
favorable to the court’s disposition of the property. Id. Although the facts and
reasonable inferences might allow for a different conclusion, we will not
substitute our judgment for that of the trial court. Id.[20] The court in a dissolution action shall divide the property of the parties in a just
and reasonable manner. Ind. Code § 31-15-7-4. The court shall presume that
an equal division of the marital property between the parties is just and
reasonable, but this presumption may be rebutted by a party who presents
relevant evidence that an equal division would not be just and reasonable. Ind.
Code § 31-15-7-5. In making this determination, the court may consider
evidence regarding the following factors: the contribution of each spouse to the
acquisition of the property; the extent to which the property was acquired by
each spouse before the marriage or through inheritance or gift; the economic
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circumstances of each spouse at the time the disposition of the property is to
become effective, including the desirability of awarding the family residence or
the right to dwell in the family residence for such periods as the court considers
just to the spouse having custody of any children; the conduct of the parties
during the marriage as related to the disposition or dissipation of their property;
and the earnings or earning ability of the parties. Id. The court is not required
to explicitly address each factor. Love, 10 N.E.3d at 1012.
[21] The trial court’s division of marital property is “highly fact sensitive.” Id. A
trial court’s discretion in dividing marital property is to be reviewed by
considering the division as a whole, not item by item. Id. We will not weigh
evidence, but will consider the evidence in a light most favorable to the
judgment. Id. A trial court may deviate from an equal division so long as it sets
forth a rational basis for its decision. Id. A party who challenges the trial
court’s division of marital property must overcome a strong presumption that
the court considered and complied with the applicable statute. Id. at 1012-1013.
Thus, we will reverse a property distribution only if there is no rational basis for
the award. Id. at 1013.
[22] It is well-established that all marital property goes into the marital pot for
division, whether it was owned by either spouse before the marriage, acquired
by either spouse after the marriage and before final separation of the parties, or
acquired by their joint efforts. Id. at 1013; Ind. Code § 31-15-7-4(a). This one-
pot theory ensures that no asset is excluded from the trial court’s power to
divide and award. Love, 10 N.E.3d at 1013.
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[23] The trial court in this case awarded Mother physical custody of the parties’
seven minor children, two of whom the court found have life-long special
medical needs which require Mother’s management of numerous medical
appointments and therapies. The court found that the demands presented by
the conditions of two of the children make it unreasonable to expect Mother to
seek employment outside the home. The nurse whose testimony Father cites
stated that she was with one of the children four to five days a week for about
ten hours on average, and she additionally testified regarding the child’s
conditions, required care, and need for supervision, that sometimes she will
work less if Mother is finished taking the other children to appointments, and
that some days she will work longer so that Mother can go to activities and
church events. The custody evaluation report to which Father cites states that
Mother has been a wife, mother, and homemaker since 1998, has limited work
experience, had an internship at a bank in high school, was a full-time student
in college studying economics, and was a housekeeper at a hotel for four
months. Mother has no earnings, Father is a self-employed mortgage broker
with employees, the court determined that his weekly gross income is $4,410,
and it awarded him the assets of the business.
[24] The court admitted evidence regarding each of the parties’ parental
responsibilities, economic circumstances, and earnings or earning ability.
Father has not overcome the strong presumption that the court considered and
complied with the applicable statute or demonstrated that there is no rational
basis for the court’s division. We cannot say the court abused its discretion in
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determining that Mother should be awarded sixty percent of the marital
property.
2. Valuation
[25] Father asserts the trial court determined the value of the marital property as of
dates near the February 19, 2016 filing of the dissolution petition for most
assets, but selected valuation dates of September 2016 for his business checking
account and March 2017 for the parties’ 2010 vehicle, and argues that the
different dates result in extremely different values without any reasoning. He
also argues that the court’s valuation of his business checking account did not
account for payroll or tax liabilities. Mother replies that Father refused the
valuation of his business as part of the marital estate and was given all of the
assets of his business.
[26] The trial court’s valuation of marital assets will be disturbed only for an abuse
of discretion. Morey v. Morey, 49 N.E.3d 1065, 1069 (Ind. Ct. App. 2016). As
long as the evidence is sufficient and reasonable inferences support the
valuation, an abuse of discretion does not occur. Id. We will not weigh the
evidence and will consider the evidence in the light most favorable to the
judgment. Id. Although the facts and reasonable inferences might allow for a
different conclusion, we will not substitute our judgment for that of the trial
court. Id.[27] A trial court has broad discretion in determining the date upon which to value
marital assets. Wilson v. Wilson, 732 N.E.2d 841, 845 (Ind. Ct. App. 2000),
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trans. denied. For purposes of choosing a date upon which to value marital
assets, the trial court may select any date between the date of filing the petition
for dissolution and the date of the final hearing. Id. There is no requirement in
our law that the valuation date be the same for every asset. Id.[28] The court’s division of the marital estate includes a schedule of the parties’ real
estate, personal property, vehicles, retirement accounts, a business checking
account, and business fixtures and equipment, and the court determined the
value of a 2010 vehicle to be $16,000 and the value of the business checking
account to be $153,032.39.
[29] As for the vehicle, Mother and Father filed financial declarations which
indicated the vehicle had a value of approximately $30,000. However, at the
final hearing, Mother introduced a vehicle report dated March 16, 2017, which
indicated the vehicle’s trade-in price was $14,420, its private seller price was
$15,593, its dealer price was $16,915, and its original MSRP was $39,820.
Mother testified that she believed the vehicle’s value was approximately
$16,000 based on the report. When asked if the vehicle had been converted for
about $10,000 to make it wheelchair accessible, Mother indicated that the
modification was paid by a Medicaid waiver and not by the parties and that she
did not believe the vehicle report gave a credit for the lift. When asked how
much the conversion cost, Mother replied she believed the Medicaid waiver
paid around $14,000. The court’s decree found that the value of the 2010
handicapped equipped vehicle was $16,000. The court was able to consider the
vehicle report, the age of the vehicle, and the testimony regarding the
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modification to the vehicle and the approximate expense paid by governmental
funds for the modification. We cannot say that the court abused its discretion
in determining the vehicle’s value for purposes of dividing the marital estate.
[30] With respect to the business checking account, the record reveals that Father is
a self-employed mortgage broker, and the court determined that his weekly
gross income for purposes of calculating his child support obligation is $4,410.
Father introduced a bank statement for his business checking account for the
period ending February 29, 2016, and the statement indicates that the ledger
balance as of February 19, 2016 was $53,893.72. Mother introduced a bank
statement for the account for the period ending September 30, 2016, which
showed that the ledger balance on that date was $153,032.39. Father’s counsel
argued that the September statement showing a ledger balance of approximately
$153,000 was dated seven months after the filing of the dissolution petition.
Mother’s counsel argued that the business was her business as well, that it was
not unfair to discuss the $153,000 balance in any month, and that Father had
not given Mother any share of the proceeds of the business since he walked out
of the house or any of the 2015 proceeds. Father’s counsel replied that Father
owns the business by himself and Mother’s name is not on the business.
[31] In addition to the February and September 2016 bank statements, the court
admitted Father’s income tax returns for 2013 through 2015, two business
credit card statements, a transaction summary showing the business’s payroll
transactions for February 25 and 26, 2016, and certain portions of the business’s
2015 tax return. Father’s income tax returns indicate that the business was
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organized as an S-corporation and that he reported his W-2 wages and
Schedule E income from the business, including income in 2015 of W-2 wages
of $77,067 and Schedule E business income of $177,571. Father’s 2015 tax
return indicates, with respect to his tax payments, that in addition to his W-2
withholding he had made estimated tax payments or applied an amount from
his 2014 return and would receive a tax refund. The custody evaluation report
states that Father started his company in 2006 and has eight employees, and
when asked the size of his team Father replied there were eight of them
altogether. The payroll transaction summary shows the business’s payroll
obligations for February 25 and 26, 2016, Father testified that payroll for the
business occurred weekly and that the payroll obligations were taken out of the
bank account, and the business checking account statement for February 2016
reflects the February 25 and 26, 2016 payroll transactions as well as other
payroll transactions.
[32] The court was able to consider the increase in value in the business checking
account from February through September of 2016 and the evidence related to
Father’s taxes and the business’s payroll practices. We cannot say that the
court abused its discretion in selecting the date of valuation and in determining
the value of the business checking account for purposes of dividing the marital
estate or that the evidence does not support the court’s determination.
[33] While we do not disturb the trial court’s determinations regarding the values of
the 2010 vehicle and the business checking account, we observe that Father also
argues that the court included a joint bank account with a balance of $1,000 in
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its schedule of assets which does not exist, that a vehicle loan balance was
improperly reduced, and that the court did not include his business credit cards
in its schedule of the marital property. We note that the parties’ financial
declarations did not indicate that the parties had a joint account containing
$1,000. As for the vehicle loan, the court’s schedule of marital property
includes an amount for a loan on a Honda Odyssey for $10,500, but the
monthly statement for the loan dated March 16, 2016, which was admitted into
evidence, indicates that the payoff amount was $13,227.93. Also, Father
presented evidence of business credit cards, one with a balance of $940 and the
other with a balance of $9,980.94. On remand, the trial court’s amended decree
should include a schedule of marital property which does not include any bank
account for which evidence was not presented; it should include any business
credit card balances which reduce the value of the marital estate; and it should
includes a balance for the loan associated with the Honda Odyssey which
reflects the evidence presented.1
3. Ordered Payments
[34] Father also argues that the trial court failed to identify certain credit card debts
and other expenses as liabilities and that, if these and other expenses the court
1
Father also argues the court rounded the advance Mother received from $20,320.52 to $20,000. Father
introduced a statement showing the balance in a trust account of $20,320.52 and indicated that it was an
account from which Mother was to take $20,000 and that to his knowledge she had $20,320.52. Mother
testified that she received the $20,000 advance, Father’s counsel stipulated that Father advanced Mother
$20,000, and the court included an advance in the amount of $20,000 in its schedule of assets. We do not
disturb the value the court assigned to the advance.
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ordered him to pay were considered as liabilities, then the court’s order would
be assigning about ninety-four percent of the marital estate to Mother. Mother
argues that the credit cards to which Father refers were used to pay for the
children’s expenses, that Father was responsible for reimbursing Mother for
those expenses, and that she should not have the responsibility of paying part of
the child support debt owed to her by paying part of that credit card debt.
[35] The preliminary order provided that, “[i]n lieu of an official child support
award, the parties agree that [Mother] shall continue to use the joint credit card
to pay all of the children’s needs and [Father] shall pay the balance each
month.” Appellant’s Appendix Volume 2 at 72. The dissolution decree
ordered Father “to pay off the balance of the expenses for the Capitol One
credit card ending in #9025” and “to pay [Mother’s] personal credit card in the
amount of $33,991.80 which was for expenses she had paid on her personal
credit card for the children.” Id. at 65. To the extent the credit card balances
which the court ordered Father to pay constituted expenses attributable to the
children’s care which the court previously ordered him to pay in lieu of child
support, the court did not err in ordering Father to pay off those credit card
balances and in not including the credit card debt in the property to be divided
between the parties.
[36] To the extent Father argues that the court’s order that he pay a portion of
Mother’s attorney fees and other litigation expenses resulted in assigning her
more than sixty percent of the marital property, we observe that Ind. Code § 31-
15-7-4 provides for the division of the marital estate and Ind. Code § 31-15-10-1Court of Appeals of Indiana | Memorandum Decision 29A05-1709-DR-2045 | February 15, 2018 Page 20 of 28
provides that the court periodically may order a party to pay a reasonable
amount for the cost to the other party of maintaining or defending any
proceeding under Ind. Code §§ 31-15 and for attorney fees and mediation
services, including amounts for legal services provided and costs incurred before
the commencement of the proceedings or after entry of judgment. Father does
not point to authority for the proposition that an order for attorney fees or
litigation expenses, or other custody evaluation or parental coordinator fees,
must be apportioned in the same proportions as the marital estate. The trial
court has broad discretion in awarding attorney fees. Barton v. Barton, 47
N.E.3d 368, 377 (Ind. Ct. App. 2015), trans. denied. The court must consider
the parties’ resources, economic conditions, abilities to earn adequate income,
and other factors that bear on the reasonableness of the award. Hartley v.
Hartley, 862 N.E.2d 274, 286 (Ind. Ct. App. 2007). The court ordered Father to
pay Mother’s attorney fees and found that the billing total was $47,094.50 and
that there were other expenses. The court also ordered that Mother be
responsible for any other attorney fees or expenses due and $23,900 in
outstanding attorney fees or expenses due to her prior attorney. Under the
circumstances, including the disparity in the parties’ incomes, we cannot say
that the court’s order as to attorney fees and expenses is unreasonable.
D. Child Support and Spousal Maintenance
[37] Father also challenges the trial court’s child support and spousal maintenance
orders. The decree, in its findings of fact, provides:
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95. [Mother] presented evidence [of] [her] weekly gross
income was $0.00 and [Father’s] weekly gross income was
$4,410.00. . . . This Child Support Worksheet (see attached)
resulted in [Father] paying weekly child support to [Mother] in
the amount of Seven Hundred Fifty dollars and Seventy-five
Cents ($750.75)
*****
98. [Mother] has requested $5,000.00 per month in
maintenance; as the demands presented by [two of the children’s]
conditions make it unreasonable to expect [Mother] to seek
employment outside of the home . . . . Due to the significant
medical conditions of some of the children that require
[Mother’s] management of numerous medical appointments,
therapies and care; she is unable to be employed outside of the
home and cannot be attributed or imputed any income at this
time. The Court finds that such request should be DENIED in
part, but GRANTED in part as Two Thousand dollars
($2,000.00) per month for maintenance.
*****
100. [Father] to be responsible for paying the book bill at Saint
Maria Goretti School for the children.
*****
103. [Mother] will apply for school vouchers for the children to
attend St. Theodore Guerin Catholic High School and will have
sole responsibility for any additional tuition expenses.
*****
108. Neither party may dissipate the children’s 529 accounts;
those accounts and all funds in them will be preserved for the
children’s secondary education.
*****
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111. Concerning secondary education or college for the
children, the 529 Funds shall be applied, and the children will
apply for scholarships and/or Federal Financial Aid for grants,
and/or contribute one third of the costs of the education. After
determinations of such amounts, [Father] will pay the remainder
of any unpaid college cost.
Appellant’s Appendix Volume 2 at 59-61. In its conclusions of law, the decree
provides:
[Per] Indiana Code 31-15-7-2(2)(A) and (B) regarding spousal
maintenance allow[s] for reasonable maintenance to be provided
if the spouse is the custodian of a child whose physical or mental
incapacity requires the custodian to forgo employment; the Court
may find that maintenance is necessary for the spouse in an
amount and for a period of time that the court considers
appropriate; . . . the Court finds that it is proper to award
caregiver maintenance for a spouse who must care of [sic] an
incapacitated child. The Court finds that [Mother] lacks
sufficient property, including marital property apportioned to her
to provide for her needs; and [Mother] is the custodian of a child
whose physical or mental incapacity requires [Mother] to forgo
employment. Thus, [Mother] meets the elements in IC 31-15-7-
2(2) necessary for the Court to grant her spousal maintenance at
this time.
Id. at 66.
[38] Father argues Mother has the ability to work and should not have been
awarded maintenance. He notes the court ordered him to pay $750.75 per
week in child support and $2,000 per month in maintenance and argues that,
while he received limited assets and almost all debts, Mother was awarded the
house and essentially all the retirement accounts, and the result is that Mother
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has significantly more assets from which to pay for college. He further argues
that, even if he is required to pay for college, the court should limit college to
four consecutive years at an in-state university after the child pays one-third and
giving Mother an appropriate share using either minimum wage or spousal
maintenance as income, which should be recalculated in each child’s senior
year. Mother argues that her responsibilities for the disabled children prevent
her from working outside the home and that was the basis for the court’s
maintenance award.
[39] With respect to child support and the fact that Mother does not work outside
the home, we note that the Commentary to Child Support Guideline 3A
discusses potential income and provides in part:
Potential income may be determined if a parent has no income . .
. and is capable of earning income or capable of earning more.
Obviously, a great deal of discretion will have to be used in this
determination. . . . The six examples which follow illustrate
some of the considerations affecting attributing potential income
to an unemployed or underemployed parent.
(1) When a custodial parent with young children at home
has no significant skills or education and is unemployed,
he or she may not be capable of entering the work force
and earning enough to even cover the cost of child care.
Hence, it may be inappropriate to attribute any potential
income to that parent. It is not the intention of the
Guidelines to force all custodial parents into the work
force. Therefore, discretion must be exercised on an
individual case basis to determine if it is fair under the
circumstances to attribute potential income to a particular
nonworking or underemployed custodial parent. The need
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for a custodial parent to contribute to the financial support
of a child must be carefully balanced against the need for
the parent’s full‑time presence in the home.
[40] The court found that the demands presented by the conditions of two of the
parties’ children make it unreasonable to expect Mother to seek employment
outside the home and that due to the significant medical conditions that require
Mother’s management of numerous medical appointments, therapies, and care,
she is unable to be employed outside of the home. We cannot say that the trial
court abused its discretion in not assigning potential income to Mother and do
not disturb the court’s use of Mother’s weekly gross income of zero dollars in its
child support obligation worksheet in determining Father’s support obligation.
[41] With respect to spousal maintenance, Ind. Code § 31-15-7-2 provides in part
that, if the court finds that “a spouse lacks sufficient property, including marital
property apportioned to the spouse, to provide for the spouse’s needs” and “the
spouse is the custodian of a child whose physical or mental incapacity requires
the custodian to forgo employment,” then the court “may find that
maintenance is necessary for the spouse in an amount and for a period of time
that the court considers appropriate.” The court found that, due to the
significant medical conditions of the children that require Mother’s
management of numerous medical appointments, therapies, and care, she is
unable to be employed outside of the home. She did not receive significant
liquid assets. Father does not dispute, and the record supports, the court’s
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findings with respect to the children’s special medical needs. We cannot say the
court abused its discretion in awarding spousal maintenance.
[42] To the extent Father contests the court’s order related to college expenses, we
note that the Commentary to Ind. Child Support Guideline 8 provides that it is
discretionary with the court to award post-secondary educational expenses and
in what amount and that, in making such a decision, the court should consider
post-secondary education to be a group effort, and weigh the ability of each
parent to contribute to payment of the expense, as well as the ability of the
student to pay a portion of the expense. The Commentary further provides
that, when determining whether or not to award post-secondary educational
expenses, the court should consider each parent’s income, earning ability,
financial assets, and liabilities. It provides that the court should apportion the
expenses between the parents and the child, taking into consideration the
incomes and overall financial condition of the parents and the child, education
gifts, education trust funds, and any other education savings program, that the
court should take into consideration scholarships, grants, student loans,
summer and school year employment and other cost‑reducing programs
available to the student, and that these latter sources should be credited to the
child’s share of the educational expense unless the court determines that it
should credit a portion of any scholarships, grants and loans to the parents’
shares of the education expense.
[43] The decree orders: “[T]he 529 Funds shall be applied, and the children will
apply for scholarships and/or Federal Financial Aid for grants, and/or
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contribute one third of the costs of the education. After determinations of such
amounts, [Father] will pay the remainder of any unpaid college cost.”
Appellant’s Appendix Volume 2 at 61. According to this order, the children
must pay for one-third of the costs of their college educations either directly or
through scholarships or grants, and Father must pay the remainder of the
unpaid college expenses after application of the 529 Funds and the children’s
required contribution. We cannot say the court abused its discretion in entering
these post-secondary educational support provisions.
[44] We further observe that the Commentary to Support Guideline 8 provides that
“[t]he court should require that a student maintain a certain minimum level of
academic performance to remain eligible for parental assistance and should
include such a provision in its order” and “[t]he court may limit consideration
of college expenses to the cost of state supported colleges and universities or
otherwise may require that the income level of the family and the achievement
level of the child be sufficient to justify the expense of private school.” On
remand, the court may in its discretion consider including additional provisions
in its amended decree which clarify its post-secondary educational expenses
support order to reflect these and Father’s requested considerations.
[45] Nothing in this opinion is intended to preclude either party from later
requesting modification of the trial court’s amended decree based upon changed
incomes or circumstances as appropriate.
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Conclusion
[46] For the foregoing reasons, we affirm in part, reverse in part, and remand for an
entry of an amended decree consistent with this opinion without the necessity
of holding any further hearing.
[47] Affirmed in part, reversed in part, and remanded.
Baker, J., and Riley, J., concur.
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