Boubacar Mbengue v. Karen M. Novak (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 23 2016, 9:09 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Danielle L. Gregory Daniel S. Vandivier
Indianapolis, Indiana Vandivier Norris & Solomon
Franklin, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Boubacar Mbengue, May 23, 2016
Appellant-Respondent, Court of Appeals Cause No.
49A02-1508-DR-1124
v. Appeal from the Marion Superior
Court
Karen M. Novak, The Honorable David J. Dreyer,
Appellee-Petitioner. Judge
The Honorable Patrick Murphy,
Magistrate
Trial Court Cause No.
49D10-1004-DR-16521
Barnes, Judge.
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Case Summary
[1] Boubacar Mbengue (“Father”) appeals the trial court’s grant of a petition for
modification of child support filed by Karen Novak (“Mother”). We affirm.
Issues
[2] Father raises three issues, which we restate as:
I. whether the trial court properly modified the
child support order;
II. whether the trial court properly denied
Father’s parenting time and tax
exemption/dependent arguments; and
III. whether the trial court properly ordered Father
to pay Mother’s attorney fees.
Facts
[3] Father and Mother married in August 2000. They have three children, C.M.,
E.M., and J.M. In April 2010, Mother filed a petition for dissolution of
marriage, and the petition was granted in August 2011. At that time, the trial
court ordered the parties to have joint legal custody of the children with Mother
having primary physical custody. Father was ordered to pay $125 per week in
child support plus an additional $20 per week toward a $5,000 arrearage. The
dissolution decree also provided that Mother was entitled to claim C.M. and
E.M. and Father was entitled to claim J.M. as tax exemptions and dependents
in even-numbered years and that Mother was entitled to claim J.M. and Father
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was entitled to claim C.M. and E.M. as tax exemptions and dependents in odd-
numbered years.
[4] In the summer of 2013, Father moved to Florida without filing a notice of
intent to relocate. In September 2013, Mother filed a motion to suspend
Father’s parenting time. After a hearing, in October 2013, the trial court
granted Mother’s motion to suspend parenting time until Father complied with
the notice of intent to relocate requirements. The trial court ordered Father not
to remove the children from Indiana without express written permission of the
trial court. If Father desired to exercise parenting time, the trial court ordered
him to “return to Indiana and remain within a 25 mile radius of mother’s
residence.” App. p. 31.
[5] In January 2015, Mother filed a petition for modification of child support.
Mother alleged that Father did not exercise parenting time but was still
receiving credit for overnights. Mother also requested that Father be ordered to
pay her reasonable attorney fees.
[6] In March 2015, Father filed a pro se letter with the trial court. Father alleged
that Mother had improperly filed her 2014 taxes claiming all three children, that
he had been paying $480 per month for “health care” for the three children, that
he was current on his child support payments, and that Mother was denying
him visitation with the children. Id. at 44.
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[7] The trial court held a hearing on Mother’s petition in April 2015. After the
hearing, Father filed another letter regarding the 2014 taxes. In July 2015, the
trial court issued an order granting Mother’s petition. The trial court found:
[B]ased upon Father’s admitted income, the fact that he has not
exercised any parenting time, and the fact that mother provides
all health insurance for the minor children, that the appropriate
amount of support is reflected in mother’s child support
worksheet entered as an exhibit in the amount of Two Hundred
Sixteen Dollars ($216) per week. The court awards this amount
retroactive to the filing date of February 9, 2015 and establishes
an arrearage in the amount of One Thousand and One Dollar
($1001). Said arrearage shall be paid at a rate of not less than
Thirty-four dollars ($34) per week. . . .
App. p. 68. The trial court also found that “no relief sought by father is proper
as any issues regarding a modification of prior orders on parenting time were
not before the court” and “father did not show evidence supporting any of the
changes sought.” Id. Finally, the trial court ordered Father to pay $750 for
Mother’s attorney fees due to the parties’ disparity in income.
[8] Father then filed two more letters with the trial court to prove that he had
provided health insurance for the children and to argue that Mother had made
false statements regarding the health insurance coverage. The trial court
considered the letters as a motion to reconsider, which it denied. Father now
appeals.
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Analysis
I. Modification of Child Support
[9] Father first argues that the trial court abused its discretion by granting Mother’s
petition to modify child support. On review, “[a] trial court’s calculation of
child support is presumptively valid.” Bogner v. Bogner, 29 N.E.3d 733, 738
(Ind. 2015). Upon the review of a modification order, “only evidence and
reasonable inferences favorable to the judgment are considered.” Id. The order
will only be set aside if clearly erroneous. Id. “We recognize of course that trial
courts must exercise judgment, particularly as to credibility of witnesses, and
we defer to that judgment because the trial court views the evidence firsthand
and we review a cold documentary record.” MacLafferty v. MacLafferty, 829
N.E.2d 938, 941 (Ind. 2005). “Thus, to the extent credibility or inferences are
to be drawn, we give the trial court’s conclusions substantial weight.” Id.[10] Under Indiana Code Section 31-16-8-1, modification of child support may be
made only:
(1) upon a showing of changed circumstances so substantial
and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child
support that differs by more than twenty percent
(20%) from the amount that would be ordered by
applying the child support guidelines; and
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(B) the order requested to be modified or revoked was
issued at least twelve (12) months before the petition
requesting modification was filed.
Mother appears to have relied on subsection (1) here and, thus, had the burden
of showing changed circumstances so substantial and continuous as to make the
terms of the earlier child support order unreasonable. See MacLafferty, 829
N.E.2d at 940.
[11] The trial court modified Father’s child support obligation because it found that
Father had not exercised parenting time since moving to Florida and that
Mother had provided health insurance for the children. Father argues that he
did, in fact, provide health insurance and that he did not exercise parenting time
because Mother improperly refused to allow it. Mother, however, testified that
Father refused to provide her with an insurance card and that she could not use
the insurance without the card. Father’s argument is merely a request to
reweigh the evidence and judge the credibility of the witnesses, which we
cannot do. See Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind. Ct. App. 2012)
(noting that we do not reweigh the evidence or judge the credibility of the
witnesses). Further, as to parenting time, the trial court’s October 2013 order
suspended Father’s parenting time and provided that, until Father filed a the
notice of intent to relocate, Father could visit with the children only in Indiana.
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There is no indication that Father ever complied with the notice of intent to
relocate requirements.1 See Ind. Code Chapter 31-17-2.2.
[12] Given the parenting time and health insurance issues, we agree with the trial
court that Mother presented evidence of changes in circumstances so substantial
and continuous as to make the terms of the earlier child support order
unreasonable. Father has failed to demonstrate that the trial court’s order is
clearly erroneous.
II. Father’s Issues
[13] Father argues that the trial court should have addressed his parenting time and
tax exemption/dependent issues but that the trial court failed to do so. The
trial court found: “[N]o relief sought by father is proper as any issues regarding
a modification of prior orders on parenting time were not before the court. The
court further [found] that father did not show evidence supporting any of the
changes sought.” App. p. 68. Thus, the trial court found that modification of
parenting time was not an issue before the court and that Father did not meet
his burden on the remaining issue.
[14] As for parenting time, Father argues that he raised parenting time issues in his
letters to the trial court and discussed parenting time issues at the hearing.
1
Father argues that he was not provided with notice of the October 2013 order in a timely manner. Based on
the testimony at the hearing, it is clear that at some point he learned of the order. However, Father has not
challenged the October 2013 order, moved to set it aside the order under Indiana Trial Rule 60(B), or sought
to comply with the order. Addressing Father’s notice argument would be premature at this time.
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However, the trial court had previously suspended Father’s parenting time and
ordered Father to file a notice of intent to relocate. Father failed to do so. 2 Due
to Father’s failure to follow the procedures required by the trial court, the trial
court’s denial of Father’s request for relief was not clearly erroneous.
[15] As for the tax issue, we note that Father argued that Mother had claimed all
three children on her 2014 tax filings. Mother, however, presented evidence
that she claimed only two of the children. Father is again requesting that we
reweigh the evidence and judge the credibility of the witnesses, which we
cannot do. See Sandlin, 972 N.E.2d at 375. The trial court’s determination is
not clearly erroneous.3
III. Attorney Fees
[16] Next, Father argues that the trial court erred by ordering him to pay $750 of
Mother’s attorney fees. Mother requested the fees as part of her petition to
modify child support. Pursuant to Indiana Code Section 31-16-11-1, a trial
court may periodically order a party to a child support proceeding to pay a
reasonable amount for attorney fees. See also Ind. Code § 31-15-10-1. The
award of attorney fees is discretionary. Whited v. Whited, 859 N.E.2d 657, 665
2
Father argues that, although he did not provide a formal notice of his intent to relocate, he provided
sufficient notice by providing his address to Mother and the trial court. We disagree that providing an
address in his letters was sufficient to meet the requirements of Indiana Code Chapter 31-17-2.2 or the trial
court’s order.
3
For this reason, we do not address Father’s contention that the trial court “ignored” his request to find
Mother in contempt regarding the tax issue. Appellant’s Br. p. 31.
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(Ind. 2007). In determining whether to award attorney fees, the trial court must
consider the parties’ resources, their economic condition, their ability to engage
in gainful employment, and other factors that bear on the award’s
reasonableness. Id.[17] The trial court found that an award of attorney fees was proper based on the
disparity in the parties’ incomes. The parties’ testimony established that both
Mother and Father are employed but that Mother earns half as much as Father.
Mother was forced to rely on her family’s assistance to hire an attorney. Given
these circumstances, we cannot say that the trial court abused its discretion.
Conclusion
[18] The trial court’s grant of Mother’s motion to modify child support is not clearly
erroneous, and the trial court’s denial of Father’s motions is not clearly
erroneous. Further, the trial court did not abuse its discretion by ordering
Father to pay Mother’s attorney fees. We affirm.
[19] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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