Carolyn F. Brundage v. Brian R. Brundage (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Dec 12 2016, 6:33 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Tula Kavadias Harold Abrahamson
Crown Point, Indiana Abrahamson, Reed & Bilse
Hammond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carolyn F. Brundage, December 12, 2016
Appellant/Cross-Appellee/Respondent, Court of Appeals Case No.
45A04-1603-DR-506
v. Appeal from the Lake Circuit Court
The Honorable George C. Paras,
Judge
Brian R. Brundage,
Trial Court Cause No. 45C01-1401-
Appellee/Cross-Appellant/Petitioner. DR-43
Bradford, Judge.
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Case Summary
[1] Appellant/Cross-Appellee/Respondent Carolyn Brundage (“Mother”) and
Appellee/Cross-Appellant/Petitioner Brian Brundage (“Father”) married in
1998 and had two children, A.B., born in 2001, and B.B., born in 2008
(collectively, “the Children”). In 2013, Mother began an extramarital affair, of
which she informed Father in early 2014. Mother also informed Father that she
wanted to separate from him, and Father petitioned for dissolution of the
parties’ marriage. Mother soon noticed that the Children’s attitude toward her
had changed, with A.B. refusing to speak to or greet her at a hearing on a
provisional order.
[2] Approximately one week after Father petitioned for dissolution, the trial court
issued a provisional order, which, inter alia, ordered Father to pay $1000 per
month to Mother in provisional maintenance. Over the next few months, the
parties and Children participated in counseling. Both A.B. and B.B. indicated
during counseling sessions that they hated Mother. In November of 2014, the
provisional order was amended to reflect a hiatus in visitation involving A.B.
and Mother. Also around this time, Father stopped making his monthly
provisional maintenance payments.
[3] Following a final evidentiary hearing, the trial court issued its dissolution order.
Inter alia, the trial court (1) awarded primary physical custody of the Children to
Father, (2) ordered that Mother pay Father $119 per week in child support, (3)
purported to divide the marital estate equally while acknowledging the difficulty
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of assigning values to many assets, and (4) ordered that Father pay $25,000 in
attorney’s fees directly to Mother’s attorney. The trial court’s order did not
address Father’s failure to pay provisional maintenance for fourteen months.
[4] As restated, Mother contends that the trial court abused its discretion in
awarding primary physical custody of the Children to Father, determining child
support, dividing the marital estate and valuing certain marital assets, and
failing to award provisional arrears owed by Father to Mother. Father cross-
appeals, contending that the trial court abused its discretion in ordering him to
pay $25,000 in attorney’s fees directly to Mother’s attorney. We affirm in part,
reverse in part, and remand with instructions.
Facts and Procedural History
[5] Mother and Father were married on September 5, 1998, and two children were
born of the marriage: A.B., born in June of 2001, and B.B., born in May of
2008. In 2013, Mother began an affair with Brian Jones, the Children’s football
coach. On or about January 3 to January 5, 2014, when Mother informed
Father of the affair, Father told the Children that “mom picked a new dad for
you.” Tr. p. 780.
[6] On January 21, 2014, Mother told Father that she wanted to physically separate
from him. Father, who had been encouraging Mother to stay in the marriage,
called the Children into the bedroom, telephoned the police, and told them that
Mother was beating him. When police arrived, Father had a “gaping gash” on
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his head that Mother had not inflicted. Tr. p. 790. Although police did not
arrest Mother, they told her that she should leave the marital residence.
[7] On January 22, 2014, Mother returned to the martial residence to retrieve some
personal items and noticed that all of her jewelry was gone. Also that day,
Father filed his verified petition for dissolution and motion for provisional order
and obtained an ex parte order for protection against Mother. Mother was out
of the marital residence for approximately one week pursuant to the order of
protection. When Mother was able to return to the marital residence, she
noticed that the Children’s attitude and treatment of her had changed
significantly.
[8] Following a hearing on January 29, 2014, the trial court issued a provisional
order providing that: (1) neither party conceal, sell, or otherwise dispose of
joint property or molest or disturb the peace of the other; (2) neither party
expose the Children to a non-relative person with which the party was having
or sought to have an intimate relationship; (3) the parties shall have joint legal
and physical custody of the Children with each staying with them 50% of the
time at the marital residence; (4) Father pay Mother $1000.00 per month as
maintenance; (5) Mother was to receive a separate bedroom at the marital
residence; and (6) the parties and Children begin counseling.
[9] After one weekend when Father had possession of the marital residence for
visitation, the parties’ housekeeper reported for work to find that one shoe was
missing from each of Mother’s pairs of shoes and that both shoes from the most
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expensive pairs were missing. When Mother returned to the marital residence
under the terms of the provisional order, the Children would not eat the food
she prepared for them, telling her that her hands were “dirty.” Tr. p. 814.
[10] On May 3, 2014, Dr. Jan Elliot, Ph.D., conducted a court-ordered counseling
session with Mother, A.B., and B.B. Dr. Elliot met first with Mother and when
A.B. was introduced, he refused to acknowledge Mother at first and then
screamed, “I hate you; you’re not a good mother.” Tr. p. 418. The session was
not productive and Dr. Elliot concluded that A.B. was being negatively
influenced by Father. When Dr. Elliot attempted to have B.B. brought in to
calm A.B., B.B. entered with his middle finger raised at Mother screaming “I
hate you” repeatedly. Tr. p. 426. Dr. Elliot concluded that Father was
negatively influencing the Children.
[11] In June of 2014, in response to reports that Mother and her relatives were
abusing A.B., a petition alleging the Children to be children in need of services
(“CHINS”) was filed. During the CHINS proceeding, psychologist Dr. Warren
Ugent recommended that there be a hiatus in A.B. and Mother’s visitation.
Father was awarded temporary custody of A.B., and, after a few supervised
visitations with Mother, DCS determined that there should be no further
visitation with Mother. On or about November 7, 2014, the provisional order
was amended to reflect the status quo with respect to A.B. and Mother’s
visitation situation.
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[12] Meanwhile, in February of 2014, Father had become involved with a woman
named Emily Stewart (“Emily Stewart #1”). Father spent tens of thousands of
dollars on Emily Stewart #1, stayed with her in an apartment at his business,
and brought her into the Children’s lives in June of 2014. When the
relationship with Emily Stewart #1 ended, she left with a large amount of
Father’s money.
[13] While attempting to locate Emily Stewart #1, Father found another woman
named Emily Stewart (“Emily Stewart #2”) on Facebook and began
correspondence. In February of 2015, Father flew to Australia to meet Emily
Stewart #2, leaving the Children with their nanny. Father returned from
Australia with Emily Stewart #2, and she moved into Father’s home. On April
25, 2015, Father and Emily Stewart #2 were married in Las Vegas, a union that
was soon annulled because Father and Mother were still legally married at the
time. Meanwhile, as of October 2014, Father ceased paying his $1000 per
month maintenance to Mother and accumulated a $14,000 arrearage as of the
final hearing.
[14] A final hearing on the dissolution was held over five days beginning on
December 18, 2015. On February 9, 2016, the trial court issued its dissolution
decree (“the Decree”). The Decree provided, in part, as follows:
9. … The evidence showed that Mother’s relationship with
the children of the marriage is strained, and regarding the
older child [A.B.], the relationship is extremely
dysfunctional to the point of being toxic and poisonous.
The evidence indicated that Father has directly and
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purposefully undermined the children’s relationship with
Mother. While this action was pending, a CHINS action
was initiated regarding the parties’ children; that action
was eventually dismissed as the court believed the
Brundages were capable of securing the necessary services
without the intervention of the child welfare authorities.
Regardless of the source of the extreme tension, Mother’s
relationship with the children at the present time is so
unworkable as to render it impossible for Mother to have
physical custody of the children.
10. The Court has taken into account the statutory factors and
has considered what is in the best interests of the children
in determining the issue of custody and parenting time.
11. Both parents are fit and proper persons to have care and
custody of the parties’ minor children.
….
14. While this action was pending, Father had a girlfriend
outside of the marriage named Emily Stewart, whom the
Court will refer to as Emily Stewart #1. The evidence
showed that he provided housing for her through the
parties’ business, and attempted to pass her off as an
employee of the company. While this action was pending,
Father entrusted Ms. Stewart #1 with approximately
$250,000 of marital funds by putting the cash in accounts
in her name. Ms. Stewart #1 absconded with the funds
and neither she nor the funds have been located.
15. In his attempts to locate Ms. Stewart #1 and the missing
funds, Father initiated an internet search and discovered a
woman with the same name living in Australia. Father
traveled to Australia to meet her, and brought her back to
the U.S. to live with him. This was not the same Emily
Stewart who took the $250,000 in marital funds. Father
expended marital funds in pursuing Emily Stewart #2.
16. Father traveled to Las Vegas, Nevada, with Ms[.] Stewart
#2 in April 2015, and married her there, before the
dissolution of his marriage to Mother was finalized.
Father and Ms. Stewart #2 had that marriage annulled in
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Nevada in July 2015. Father testified that he was unaware
that there is a law against marrying another spouse while
still being married to the current spouse.
17. Both parties posted various lascivious photos of
themselves with their new significant others on Facebook
while this action was pending, which postings fanned the
flames of the children’s alienation and other emotional
and psychological issues.
18. The Court notes that Father was a less than credible
witness on numerous points of testimony. The Court also
notes that Father appears to be an accomplished
manipulator of facts and situations.
91. The parties have a variety of business interests, but
Father’s primary business appears to be Intercon
Solutions, Inc., in which he is a 50% owner. Father
contends that this business is bankrupt and that he is
unemployed and without income. The testimony
indicated that Father engaged in a variety of questionable
and possibly illegal practices that resulted in draining the
assets and value from Intercon Solutions, and diverting
them to himself.
20. While this action was pending, at the same time that
Father contends that he is without income and that
Intercon [Solutions] is broke, Father incorporated a new
company, Envirogreen Processing, LLC, which is
headquartered at Father’s current residential address.
Father listed himself as CEO and Ms. Stewart #2 as the
owner of this company.
21. Ms. Stewart #2 is currently pregnant.
22. Both parties work in their various businesses and derive
income from those businesses. Father claims to be
unemployed and is collecting unemployment benefits from
the State of Illinois in the amount of $580 per week.
Father claimed income of $92,000 for the year 2015;
however, expert witness William Condon examined
business records and testified that Father was more likely
earning an average in excess of $1,000,000 annually for the
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last three years. Mother works at her businesses mostly
on-line, with the testimony indicating that she earns
approximately $50,000.00 annually from Oak Street
Social. There was no evidence as to income from her
other businesses.
23. The evidence was fairly indeterminate and contradictory
as to what income should be attributed to each party.
Accordingly the Court has based child support on the
income levels shown on the most recent tax returns filed
by the parents, with Father having weekly income of
$1,923.08 and Mother having weekly income of $961.54.
Mother should be ordered to pay to Father the sum of
$119.00 each week for the support of the parties’ minor
children. Said child support is in accordance with the
Indiana Child Support Guidelines. Said child support
shall be paid by way of an Income Withholding Order
through the State Central Unit, PO. Box 6219,
Indianapolis, Indiana 46206-6219. Father shall be
responsible for the first $1,400.88 annually in non-covered
medical expenses for the children and Mother shall be
responsible for 31.86 % of such expenses in excess of that
amount. Father shall keep said children covered by health
insurance through his employer.
24. The parties have acquired various assets, both real and
personal, during the course of the marriage, and said assets
should be divided equitably between the parties.
25. The parties are the owners of real estate consisting of the
marital residence located at 1316 Inverness Lane in
Schererville, Indiana. Said real estate has an appraised
value of $445,000.00, and there are no outstanding
mortgages or liens against said property. Mother should
be awarded the parties’ entire interest in said real estate.
Mother shall be responsible for payment of the taxes,
insurance, utilities, maintenance and all other debts and
obligations arising from the use and ownership thereof,
and shall hold Father harmless therefrom.
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27. In addition to the house on Inverness Lane, Father may
have an ownership interest in the house he moved into
while this action was pending, which is located at 724
Royal Dublin Lane in Dyer, Indiana. Father denies that
he owns the house, and claims that it is owned by a
relative of his, but the evidence showed that Father has
spent a large sum of money for remodeling and
improvements to that real estate. There is no evidence
before the Court as to the value of that house. Father
should be awarded any ownership interest he may have in
that real estate and hold Mother harmless on any
obligations in connection with it.
28. The parties have acquired the following items of personal
property during the course of the marriage:
a. various items of furniture, appliances and household
goods located at the marital residence, valued at
approximately $225,000.00.
b. 2008 Lexus LS 460, valued at approximately
$42,000.00; Mother has possession of this vehicle.
c. 2013 Land Rover, currently in Father’s possession.
d. 2011 Kia automobile, currently in Father’s
possession.
e. 2008 Porsche 911, valued at approximately
$42,000.00; proceeds from the sale of this vehicle
were divided equally between the parties while this
action was pending.
f. Lexus LFA, which was sold while this action was
pending; Father received $175,000 from the sale of
this vehicle.
g. Lexus 600, currently in father’s possession
h. 2009 Cadillac Escalade, currently in Father’s
possession
i. Polaris ATV XS, currently in Father’s possession.
j. TCF Bank checking account #5670, balance $6,551
k. TCF Bank savings account #2977, balance $505.
l. American Express savings, #4486, balance $524
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m. Grow Financial FCU savings, #3985-1, balance
$6.00
n. Grow Financial FCU money market #3985-10,
balance $982
o. Grow Financial FCU savings #5037-1, balance
$6.00
p. Grown Financial FCU money market #5037-10,
balance $982.
q. Fidelity, #1692, balance unknown
r. MetLife #2653, balance unknown
s. TD Ameritrade, #5322, balance $6,563.
t. New York Life whole life policy #8823 on Father,
cash value $10,762.
u. New York Life term life policy #2123 on Father, no
cash value
v. New York Life whole life policy #0039 on Father,
cash value $6,549.
w. New York Life whole life #8572 for son [A.B.],
cash value $19,349
x. New York Life whole life #8555 for son [B.B.], cash
value $19,629
y. ING term life policy #4066 on Father, no cash
value
z. New York Life whole life policy #8192 on Mother,
cash value unknown
aa. New York Life term life policy #3564 on Mother,
no cash value.
ab. Mother’s jewelry collection, estimated value of
$1,000,000.
ac. Father’s jewelry collection, insured for $344,003
ad. Mother’s stamp collection
ae. Mother’s coin collection
af. Father’s sports memorabilia collection
ag. Intercom Solutions IRA #6692, balance $106,677.
ah. Father’s gun collection
ai. Gold bullion, value unknown, in Father’s
possession.
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29. Additionally, the parties hold a TCF Bank savings account
#0392, balance $551, for the benefit of son [A.B.], and a
TCF Bank savings account #1818, balance $500, for the
benefit of son [B.B.]. It is the desire of the parties that
these accounts continue to be held for the parties’ sons and
the Court concurs in this.
30. The Court finds that the two whole life insurance policies
designated for the benefit of the parties’ children continue
to be maintained for the children’s benefit.
31. The parties expressed their desire that the sports
memorabilia collection be set aside for and held in trust for
the parties’ children, and the Court concurs in this; said
collection shall be held in trust by Father for the benefit of
[A.B.] and [B.B.].
32. Mother also had an extensive and valuable shoe collection
during the marriage. When Father had Mother removed
from the marital residence by way of an action for a
protective order, he took one shoe of each pair and
destroyed them, leaving the collection valueless and
forcing Mother to purchase new shoes. When Mother
returned to the residence she discovered that Father also
destroyed much of Mother’s clothing and took, hid or
disposed of Mother’s jewelry. While Father denies
knowing the whereabouts of the jewelry, witnesses
testified to having seen it in his possession since the time it
disappeared; Father has also continued to pay the
premiums on the insurance policy covering the jewelry.
33. Other than Intercon Solutions, the Court finds it
impossible based on the evidence presented to quantify the
values of the parties’ business interests; likewise, no cogent
values were presented for many of the personal property
items, such as the various collections.
….
35. William Condon, a business appraiser, testified that in his
opinion Intercon Solutions has a fair market value of
$2,200,000, of which Father owns a half interest. Father
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claims that he is liable for Intercon [Solutions] company
debt in the amount of $823,511.
36. The Court heard extensive evidence from multiple
witnesses of Father’s actions in diverting funds due to the
Intercon [Solutions] company to payment of his personal
debts and expenses, and leaving the company unpaid.
Testimony also showed that Intercon [Solutions]
employees went unpaid or were paid late while Intercon
[Solutions] receivables were diverted from the company.
37. The Court is finding it impossible to properly value the
parties’ business interests. The Court does note that both
parties appeared to live well on the funds generated by said
business interests[.]
38. The Court finds ample evidence that Father dissipated
marital assets in numerous ways, by diverting company
assets and bankrupting the business, by secreting funds
with his former girlfriend who absconded with the marital
money, by spending funds to travel to Australia to meet
his current girlfriend, by purposely destroying Mother’s
personal property and by removing and secreting high
value personal property from the marital residence,
specifically jewelry Mother asserts was worth in excess of
$1,000,000. The Court must take into consideration said
dissipation in dividing the marital assets.
….
43. The parties have various debts outstanding from the
marriage, but the remaining debts appear to be business
debts or automobile loan balances. Business debts and
obligations shall be the responsibility of the party who is
awarded that business interest. Likewise, automobile loan
obligations shall be the responsibility of the party who is
awarded the encumbered vehicle.
….
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that:
1. The marriage between the parties herein is hereby
dissolved.
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2. Mother and Father are hereby awarded joint legal custody
of the parties’ two children, with Father having primary
physical custody of both children. Mother is hereby
awarded parenting time with said minor children at times
and places befitting the relationship she has with each of
the children. Mother is to have parenting time in
accordance with the Indiana Parenting Time Guidelines
with the parties’ younger son [B.B.]. The parties are
ordered to continue therapy and counseling for the parties’
older son [A.B.] toward the goal of reuniting [A.B.] with
Mother and normalizing their relationship. Mother shall
have parenting time with [A.B.] at such times, places and
durations as deemed beneficial by the therapist or
counselor guiding the effort to reunite them. The parties
shall have 30 days to stipulate on the record to a therapist
or counselor or the Court will appoint such a professional.
The issue of Mother’s parenting time with [A.B.] will be
revisited by the Court as the reunification effort progresses.
3. Mother … is hereby ordered to pay to Father … the sum
of $119.00 each week for the support of the parties’ minor
children. Said child support is in accordance with the
Indiana Child Support Guidelines. Said child support
shall be paid by way of an Income Withholding Order
through the State Central Unit, PO. Box 6219,
Indianapolis, Indiana 46206-6219. Father shall be
responsible for the first $1,400.88 annually in non-covered
medical expenses for the children and Mother shall be
responsible for 31.86% of such expenses in excess of that
amount. Father shall keep said children covered by health
insurance through his employer.
4. The Court finds that the child Mother gave birth to while
this action was pending is not a child of the marriage, that
Father is not the father of said child and that Father has no
obligations toward or rights in connection with said child.
The Court further finds that the evidence indicates that the
father of that child is Brian Jones. As it is not the intent of
the Court to leave that child legally fatherless, Mother is
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instructed to take all necessary steps to establish paternity
and ensure that the biological father takes legal
responsibility to support said child.
5. Mother … is hereby awarded the parties’ entire interest in
the real estate located at 1316 Inverness Lane in
Schererville, Indiana, 46375. Mother shall be responsible
for payment of the taxes, insurance, utilities, maintenance
and all other debts and obligations arising from the use
and ownership thereof, and shall hold Father harmless
therefrom.
6. Father is hereby awarded any ownership interest he may
have in the real estate located at 724 Royal Dublin Lane in
Dyer, Indiana, and hold Mother harmless on any
obligations in connection with it.
7. Father … is hereby awarded as his own individual
property the following of the parties’ personal assets:
a. the furniture, appliances and household goods
currently in Father’s possession.
b. Father’s clothing, jewelry and personal effects.
c. 2013 Land Rover, currently in Father’s possession.
d. 2011 Kia automobile, currently in Father’s
possession.
e. Lexus 600, currently in father’s possession
f. 2009 Cadillac Escalade, currently in Father’s
possession
g. Polaris ATV XS, currently in Father’s possession.
h. Intercon Solutions, Inc. 50% share Father’s name
i. Smashmouth LLC, 99% share in Father’s name
j. Brian Brundage Designs, 100% share in Father’s
name
k. Worldwide Career Management, 100% share in
Father’s name
l. NWI Properties Inc., 100% share in Father’s name
m. Greening Tomorrow, 100% share in Father’s name
n. Intercon Web Marketing, 100% share in Father’s
name
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o. Downtown Investments & Management, LLC,
100% share in Father’s name
p. New York Life whole life policy #8823 on Father,
cash value $10,762.
q. New York Life term life policy #2123 on Father, no
cash value
r. New York Life whole life policy #0039 on Father,
cash value $6,549.
s. ING term life policy #4066 on Father, no cash
value
t. Father’s gun collection
u. Gold bullion, value unknown, in Father’s
possession.
8. Mother … is hereby awarded as her own individual
property the following of the parties’ personal assets:
a. the furniture, appliances and household goods
currently in Mother’s possession.
b. Mother’s clothing, jewelry and personal effects that
remain in Mother’s possession.
c. 2008 Lexus LS 460, valued at approximately
$42,000.00.
d. Pretty City, Inc., 100% share in Mother’s name
e. Chartee’s, 100% share in Mother’s name
f. Beauty Bloggers Association, 100% share in
Mother’s name
g. Chicago Beauty, 100% share in Mother’s name
h. Tampa Bay Beauty, 100% share in Mother’s name.
i. Oak Street Social, 50% share in Mother’s name.
j. New York Life whole life policy #8192 on Mother,
cash value unknown
k. New York Life term life policy #3564 on Mother,
no cash value.
1. Mother’s stamp collection
m. Mother’s coin collection
9. The following bank and investment accounts are to be
liquidated and the proceeds divided equally between the
parties:
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a. TCF Bank checking account #5670, balance $6,551
b. TCF Bank savings account #2977, balance $505.
c. American Express savings, #4486, balance $524
d. Grow Financial FCU savings, #3985-1, balance
$6.00
e. Grow Financial FCU money market #3985-10,
balance $982
f. Grow Financial FCU savings #5037-1, balance
$6.00
g. Grown Financial FCU money market #5037-10,
balance $982.
h. Fidelity, #1692, balance unknown
i. MetLife #2653, balance unknown
j. TD Ameritrade, #5322, balance $6,563.
k. Intercon Solutions IRA #6692, balance $106,677.
10. The parties shall continue to hold the TCF Bank savings
account #0392, balance $551, for the benefit of son [A.B.],
the TCF Bank savings account #181 8, balance $500, for
the benefit of son [B.B.], the New York Life whole life
policy #8572 for son [A.B.], cash value $19,349 and the
New York Life whole life policy #8555 for son [B.B.],
cash value $19,629. Additionally, Father shall hold in
trust for the benefit of the parties’ sons the sports
memorabilia collection.
11. Father … is hereby ordered to return to Mother … her
jewelry and other personal effects that Father removed
from the marital residence.
12. The parties have various debts outstanding from the
marriage, but the remaining debts appear to be business
debts or automobile loan balances. Business debts and
obligations shall be the responsibility of the party who is
awarded that business interest. Likewise, automobile loan
obligations shall be the responsibility of the party who is
awarded the encumbered vehicle.
13. Each party should assume and be responsible for any and
all debts incurred by him or her individually while this
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action was pending, and shall hold the other party
harmless therefrom.
14. The parties herein are hereby ordered to execute and
deliver all papers and documents necessary to effectuate
the above provisions within twenty (20) days of this
Decree.
15. Father … is hereby ordered to pay Mother’s additional
attorney fees incurred herein in the amount of $25,000.00;
one-half (1/2) of said sum shall be due within thirty (30)
days, and the balance shall be due within sixty (60) days.
Said sums shall be paid directly to said Attorney Thomas
O’Donnell.
Appellant’s Br. pp. 28-42.
[15] Mother contends that the trial court abused its discretion in awarding primary
physical custody of the Children to Father, determining child support, dividing
the marital estate, valuing certain marital assets, and failing to address alleged
provisional arrears owed by Father to Mother. Father contends that the trial
court did not abuse its discretion in determining custody, dividing the marital
estate, in finding his income to be $92,000 per year, or in declining to award
$14,000 in maintenance pursuant to the provisional order. Father also cross-
appeals, claiming that the trial court abused its discretion in ordering him to pay
$25,000 in attorney’s fees.
Discussion and Decision
[16] Where, as happened here, the trial court sua sponte enters specific findings of
fact and conclusions, we review its findings and conclusions to determine
whether the evidence supports the findings, and whether the findings support
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the judgment. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005). We
will set aside the trial court’s findings and conclusions only if they are clearly
erroneous. Id. A judgment is clearly erroneous when a review of the record
leaves us with a firm conviction that a mistake was made. Id. We neither
reweigh the evidence nor assess the witnesses’ credibility, and consider only the
evidence most favorable to the judgment. Id. Further, “findings made sua
sponte control only … the issues they cover and a general judgment will control
as to the issues upon which there are no findings. A general judgment entered
with findings will be affirmed if it can be sustained on any legal theory
supported by the evidence.” Id.
I. Custody
[17] Mother contends that the trial court abused its discretion in awarding primary
physical custody of the Children to Father, in light of his history of parental
alienation.
The court shall determine custody and enter a custody order in
accordance with the best interests of the child. In determining
the best interests of the child, there is no presumption favoring
either parent. The court shall consider all relevant factors,
including the following:
(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
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(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, and if the evidence is sufficient, the court shall
consider the factors described in section 8.5(b) of this chapter.
Ind. Code § 31-17-2-8.
A child custody determination falls within the sound discretion
of the trial court, and its determination will not be disturbed on
appeal absent a showing of abuse of discretion. In Re
Guardianship of R.B., 619 N.E.2d 952, 955 (Ind. Ct. App. 1993).
We are reluctant to reverse a trial court’s determination
concerning child custody unless the determination is clearly
erroneous and contrary to the logic and effect of the evidence. Id.
We do not reweigh evidence nor reassess witness credibility, and
we consider only the evidence which supports the trial court’s
decision. Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App.
1996).
Spencer v. Spencer, 684 N.E.2d 500, 501 (Ind. Ct. App. 1997).
[18] Mother challenges the trial court’s finding that both she and Father are fit and
proper persons to have custody of the Children. Mother argues that because of
evidence that Father has engaged in a systematic pattern of parental alienation,
a finding that he is a fit parent amounts to an abuse of discretion. We agree
that the record supports the trial court’s finding that Father has intentionally
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and purposefully undermined the Children’s relationship with Mother.
However, and keeping in mind that we may only consider evidence that
supports the trial court’s judgment, the record also supports the finding that
Mother’s relationship with the Children—particularly A.B.—is so strained at
this point that granting her primary physical custody would be “impossible.”
[19] Dr. Warren Ugent, Psy.D., was asked by the parties to treat A.B. in May of
2014, and ultimately met with him approximately thirty times. Dr. Ugent
opined that he did not believe that Father was telling A.B. what to say in
counseling. A.B. told Dr. Ugent that Mother’s affair with Jones had destroyed
his “near perfect life.” Tr. p. 676. Dr. Ugent testified that A.B. is adamant
about not wanting to see or be with Mother. Dr. Ugent also opined that A.B.’s
personality traits are one reason that he cannot yet forgive Mother.
[20] A.B. also cited alleged physical abuse of himself by Mother and pictures and
statements posted on Facebook that A.B. found embarrassing. One example
was a picture posted on Facebook of Mother standing behind Jones (who was
dressed only in underpants), reaching around him, and placing her hand on his
crotch. One of A.B.’s friends brought the picture to A.B.’s attention at school
and teased him about it. A.B. indicated that he was devastated when he
learned of Mother’s pregnancy with Jones’s child, believing that Mother no
longer loved him. On October 4, 2014, Dr. Ugent sent a letter to the family’s
DCS case manager concerning A.B.’s reaction to Mother’s pregnancy. Dr.
Ugent noted that A.B. had expressed suicidal ideation with respect to visitation
with Mother and recommended that “visitation be temporarily halted while he
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takes time to process this devastating information [regarding Mother’s
pregnancy].” Appellee’s App. p. 46. The record contains ample evidence to
sustain a finding that, whatever the reason, reunification of A.B. with Mother is
not a viable option at this time.
[21] Other than evidence related to parental alienation, Mother points to no
evidence in the record to indicate that Father is an unfit parent, and it is
abundantly clear that A.B. would prefer at this point to be with Father. It
should also be noted that the trial court’s disposition provides that she have
visitation with B.B. pursuant to the Indiana Parenting Time Guidelines in
addition to contemplating that her separation from A.B. be temporary. The
trial court ordered the parties to continue therapy and counseling with the goal
of reunification and normalization of A.B. and Mother’s relationship. The trial
court also ordered that A.B. have visitation with Mother at times deemed
beneficial by the therapist or counselor guiding the reunification process. The
trial court’s order further provided that it would revisit the issue as the
reunification process progressed. While we certainly do not condone any acts
of parental alienation on Father’s part, the record contains sufficient evidence to
conclude that, so far as Mother is concerned, visitation with, or physical
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custody of, the Children is not feasible at this point. Mother has failed to
establish that the trial court abused its discretion in this regard.1
II. Child Support
[22] On review, “[a] trial court’s calculation of child support is
presumptively valid.” Young v. Young, 891 N.E.2d 1045, 1047
(Ind. 2008) (citing Kondamuri v. Kondamuri, 852 N.E.2d 939, 949
(Ind. Ct. App. 2006)). “[R]eversal of a trial court’s child support
order deviating from the appropriate guideline amount is merited
only where the trial court’s determination is clearly against the
logic and effect of the facts and circumstances before the trial
court.” Kinsey v. Kinsey, 640 N.E.2d 42, 43 (Ind. 1994) (citing
Humphrey v. Woods, 583 N.E.2d 133, 134 (Ind. 1991)). Upon the
review of a modification order, “only evidence and reasonable
inferences favorable to the judgment are considered.” Kinsey,
640 N.E.2d at 44 (string citation omitted). The order will only be
set aside if clearly erroneous. Id.
Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind. 2015).
[23] Mother contends that the trial court abused its discretion in finding that
Father’s income for both 2012 and 2013 was $92,048.00 for purposes of
determining child support obligations. For his part, Father argues that the trial
court overestimated his income. Mother relies primarily on evidence provided
1
Mother has relied, in part, on our decision in Kirk v. Kirk, 759 N.E.2d 465 (Ind. Ct. App. 2001), a decision
which was vacated by the Indiana Supreme Court in Kirk v. Kirk, 770 N.E.2d 304 (Ind. 2001). Mother also
draws our attention to our decision in Maddux v. Maddux, 40 N.E.3d 971 (Ind. Ct. App. 2015), in which we
reversed the trial court’s denial of a father’s motion for change of custody where the mother had
systematically denied and interfered with his parenting time and leveled several unfounded allegations of
child abuse against him. Unlike here, however, there is no indication in Maddux that mother’s misconduct
had influenced the child in question into despising his father, or that the child himself refused to see the
father.
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by William Condon, who performed a business analysis of Intercon Solutions.
Condon testified that Father’s 50% interest in Intercon Solutions was worth
$1,725,806 on December 31, 2013, that Father should have been paid more for
being Intercon Solutions CEO, and that various of Father’s personal expenses
were paid through Intercon Solutions. Condon testified that the yearly salary
he would have paid Father for being CEO was either $224,000, $176,000, or
$221,000. Condon also testified that Intercon Solutions made payments related
to “expenses not germane to the business” of $682,000 in 2011, $754,000 in
2012, and $1,347,000 in 2013. Tr. p. 210. Condon testified that the expenses in
question would have been typically added back to the shareholder’s income.
Father points to his testimony that at the time of the final hearing, he was
unemployed and earning $580 in unemployment compensation from the State
of Illinois.
[24] Two possible interpretations of the evidence above are that Father’s income
greatly exceeded $92,000 per year or that it was far less. The trial court,
however, did not accept either of these interpretations. The trial court was free
to consider and reject Condon’s and/or Father’s testimony regarding Father’s
income, and it did so. The trial court specifically found evidence regarding
both parties’ incomes to be “fairly indeterminate and contradictory as to what
income should be attributed to each party” and chose to use the incomes
reported by the parties on recent tax returns. Appellant’s Br. p. 31. Because the
trial court’s findings regarding income are supported by evidence in the record,
both Mother and Father have failed to establish an abuse of discretion. The
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parties’ arguments are an invitation to reweigh the evidence, which we will not
do.
III. Division of the Marital Estate
[25] Mother contends that the trial court abused its discretion in failing to assign
values to numerous marital assets and unequally dividing the marital estate.
Indiana Code section 31-15-7-5 provides as follows:
The court shall presume that an equal division of the marital
property between the parties is just and reasonable. However, this
presumption may be rebutted by a party who presents relevant
evidence, including evidence concerning the following factors, that
an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was income
producing.
(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic 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.
(4) The conduct of the parties during the marriage as related to
the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the
parties.
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A. Assigning Value to Certain Marital Assets
[26] A trial court has broad discretion in valuing marital assets, and
its valuation will only be disturbed for an abuse of that discretion.
Leonard v. Leonard, 877 N.E.2d 896, 900 (Ind. Ct. App. 2007). A
trial court does not abuse its discretion as long as sufficient
evidence and reasonable inferences exist to support the valuation.
Id. If the trial court’s valuation is within the scope of the
evidence, the result is not clearly against the logic and effect of
the facts and reasonable inferences before the court. See Skinner
v. Skinner, 644 N.E.2d 141, 144 (Ind. Ct. App. 1994). When
determining the date upon which to value the marital assets, the
trial court may select any date between the date of filing the
dissolution petition and the date of the final hearing. Deckard v.
Deckard, 841 N.E.2d 194, 200 (Ind. Ct. App. 2006) (citing Quillen
v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996)).
Webb v. Schleutker, 891 N.E.2d 1144, 1151 (Ind. Ct. App. 2008). “A valuation
submitted by one of the parties is competent evidence of the value of property in
a dissolution action and may alone support the trial court’s determination in
that regard.” Houchens v. Boschert, 758 N.E.2d 585, 590 (Ind. Ct. App. 2001)
(citation omitted), trans. denied.
[27] Mother contends that the trial court abused its discretion in failing to include
the proceeds, totaling $175,000, from the sale of a Lexus LFA automobile in
the marital estate.2 Father, however, testified that the Lexus LFA was owned
2
While Mother contends that the trial court erroneously failed to assign values to numerous marital assets,
Mother identifies only one asset by name, the Lexus LFA. Consequently, Mother has waived all claims
regarding the other, unnamed assets. See Johnson v. State, 675 N.E.2d 678, 681 n.1 (Ind. 1996) (observing that
the defendant failed to cite to the record and “[o]n review, this Court will not search the record to find
grounds for reversal”); Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990) (holding that a court which must
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by Intercon Solutions and that the proceeds went back into the company’s
account in order to pay its bills. Mother’s argument in this regard is another
invitation to reweigh the evidence, which we will not do.
B. Unequal Division
[28] Indiana Code section 31-15-7-5 provides as follows:
The court shall presume that an equal division of the marital
property between the parties is just and reasonable. However,
this presumption may be rebutted by a party who presents
relevant evidence, including evidence concerning the following
factors, that an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was income
producing.
(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic 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.
(4) The conduct of the parties during the marriage as related
to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
search the record and make up its own arguments because a party has presented them in perfunctory form
runs the risk of being an advocate rather than an adjudicator); Haddock v. State, 800 N.E.2d 242, 245 n.5 (Ind.
Ct. App. 2003) (noting that “we will not, on review, sift through the record to find a basis for a party’s
argument”).
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(B) a final determination of the property rights of the
parties.
[29] “Subject to the statutory presumption that an equal distribution of marital
property is just and reasonable, the disposition of marital assets is committed to
the sound discretion of the trial court.” Augspurger v. Hudson, 802 N.E.2d 503,
512 (Ind. Ct. App. 2004).
An abuse of discretion occurs if the trial court’s decision is clearly
against the logic and effect of the facts and circumstances, or the
reasonable, probable, and actual deductions to be drawn
therefrom. An abuse of discretion also occurs when the trial
court misinterprets the law or disregards evidence of factors listed
in the controlling statute. The presumption that a dissolution
court correctly followed the law and made all the proper
considerations in crafting its property distribution is one of the
strongest presumptions applicable to our consideration on
appeal. Thus, we will reverse a property distribution only if there
is no rational basis for the award and, although the circumstances
may have justified a different property distribution, we may not
substitute our judgment for that of the dissolution court.
Id. (citations, quotation marks, and brackets omitted).
[30] Mother argues that the trial court abused its discretion in ordering an unequal
division of the marital estate without evidence to support such a division.
Mother contends that the trial court erroneously awarded Father an
approximate share of 65% of the marital estate, and, although Mother does not
explain how she arrived at this figure, her argument seems to be based entirely
on two assets that she contends were erroneously valued and/or assigned to
Father: the proceeds from the sale of the Lexus LFA and Father’s 50% interest
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in Intercon Solutions. For his part, Father argues that the trial court
erroneously overvalued his share in Intercon Solutions.
[31] As previously discussed, the trial court’s decision not to include the proceeds
from the sale of the Lexus LFA in the marital estate was supported by sufficient
evidence. As for the value of Father’s interest in Intercon Solutions, the trial
court’s findings indicate that Intercon Solutions was the only one of the parties’
various business interests to which it felt it could assign a value based on the
evidence presented. To that end, the only evidence the trial court identified was
testimony that Intercon Solutions was valued at $2,200,000, Father owned a
50% share, and Father was liable for company debt of $823,511, which yields a
value of $276,489. Based on this value for Intercon Solutions, the following
table summarizes the trial court’s division of the martial estate, including all
assets that were found to have definite values and specifically designed to either
party:
Assets assigned to Father Assets assigned to Mother
Asset Value Asset Value
Marital Residence $445,000.00
Household goods (50%)3 $112,500.00 Household goods (50%) $112,500.00
Lexus automobile $42,000.00
3
The trial court valued furniture, appliances and household goods located at the marital residence at
$225,000 and assigned to each party those items already in possession. In the absence of any indication to
the contrary, we assume an approximately equal division of this asset.
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TCF Bank checking $3,275.50 TCF Bank checking $3,275.50
account #5670 (50%) account #5670 (50%)
TCF Bank savings $252.50 TCF Bank savings $252.50
account #2977 (50%) account #2977 (50%)
American Express savings $262.00 American Express savings $262.00
(50%) (50%)
Grow Financial FCU $3.00 Grow Financial FCU $3.00
savings #3985-1 (50%) savings #3985-1 (50%)
Grow Financial FCU $491.00 Grow Financial FCU $491.00
money market #3985-10 money market #3985-10
(50%) (50%)
Grow Financial FCU $3.00 Grow Financial FCU $3.00
savings #5037-1 (50%) savings #5037-1 (50%)
Grown Financial FCU $491.00 Grown Financial FCU $491.00
money market #5037-10 money market #5037-10
(50%) (50%)
TD Ameritrade, #5322 $3,281.50 TD Ameritrade, #5322 $3,281.50
(50%) (50%)
New York Life whole life $10,762.00
policy #8823
New York Life whole life $6,549.00
policy #0039
Mother’s jewelry $1,000,000.00
collection
Father’s jewelry collection $344,003.00
Intercom Solutions IRA $53,338.50 Intercom Solutions IRA $53,338.50
#6692 (50%) #6692 (50%)
Interest in Intercon $276,489.00
Solutions
Totals $811,701.00 $1,660,898.00
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[32] As can be seen, the trial court, if anything, divided the martial estate unequally
in Mother’s favor, not Father’s. While both parties point to conflicting
evidence to support their argument regarding the trial court’s valuation of
Intercon Solutions, the arguments are invitations to reweigh that evidence,
which we will not do. Mother and Father have both failed to establish that the
trial court abused its discretion in dividing the marital estate.
IV. Provisional Maintenance
[33] It is not disputed that Father failed to pay fourteen monthly provisional
maintenance payments of $1000 each. Mother contends that the trial court
abused its discretion in not addressing this arrearage in the Decree. Father
contends that a drastic change in circumstances between October of 2014 and
the final hearing warranted elimination of his provisional maintenance
obligation and that the trial court tacitly recognized this by failing to address the
issue in the Decree.
A provisional order is temporary in nature and terminates when
the final dissolution decree is entered or the petition for
dissolution is dismissed. Ind. Code §31-15-4-14. The
determination of temporary orders in a dissolution proceeding is
committed to the sound discretion of the trial court, and it can
issue orders for temporary maintenance or support, temporary
restraining orders, custody orders, and orders for possession of
property to the extent it deems just and proper. Ind. Code §31-
15-4-8; Wendorf v. Wendorf, 174 Ind. App. 172, 173, 366 N.E.2d
703, 704 (1977). On appeal, we will consider only the evidence
most favorable to the trial court’s decision. In re Marriage of
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McDonald, 415 N.E.2d 75, 79 (Ind. Ct. App. 1981); Wendorf, 366
N.E.2d at 705. We will reverse only where the decision is clearly
against the logic and effect of the facts and circumstances before
the court. McDonald, 415 N.E.2d at 79; Wendorf, 366 N.E.2d at
705.
Mosley v. Mosley, 906 N.E.2d 928, 930 (Ind. Ct. App. 2009).
[34] Father argues that we should interpret the Decree’s silence on the provisional
maintenance question as a ruling by the trial court that circumstances had
changed sufficiently to excuse Father from his obligation, retroactive to the fall
of 2014. The record, in our view, is insufficient to allow us to adopt this
interpretation. Quite simply, the trial court made no findings that even suggest
it found a change in circumstances that would warrant relieving Father from his
provisional maintenance obligation. Moreover, although it does not appear
from the record that the parties argued the question in depth during the final
hearing, Father does not argue that Mother has waived the issue.
[35] Although a provisional order terminates upon issuance of the dissolution order,
see Ind. Code § 31-15-4-14, we have held that a trial court may order that an
arrearage of provisional maintenance be satisfied upon dissolution. See Crowley
v. Crowley, 708 N.E.2d 42, 57 (Ind. Ct. App. 1999), overruled on other grounds by
Bojrab v. Bojrab, 810 N.E.2d 1008, 1014 n.3 (Ind. 2004) (“Because Mark failed
to make the ordered mortgage payments, Laura lost the benefit of such
payments for the several months leading up [to] the dissolution decree. The
trial court was allowed to award her the benefit of the accrued payments upon
dissolution. Thus, the trial court did not abuse its discretion in ordering
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payment of the temporary maintenance arrearage.”). Father points to no
finding or conclusion that would support excusing his failure to comply with
the trial court’s provisional maintenance order. We remand with instructions to
order Father to satisfy his $14,000 provisional maintenance arrearage.
V. Attorney’s Fees
[36] Father cross-appeals, contending that the trial court abused its discretion in
ordering him to pay $25,000 in Mother’s attorney’s fees.
Indiana Code section 31-15-10-1(a) authorizes the trial court to
order a party to pay a reasonable amount for the cost to the other
party of maintaining a dissolution proceeding. This includes the
award of reasonable appellate attorney fees. Beeson v. Christian,
594 N.E.2d 441, 443 (Ind. 1992). Moreover, the trial court
“enjoy[s] broad discretion in awarding allowances for attorney’s
fees. Reversal is proper only where the trial court’s award is
clearly against the logic and effect of the facts and circumstances
before the court.” Selke v. Selke, 600 N.E.2d 100, 102 (Ind. 1992).
In other words, we review such awards only for an abuse of
discretion. Holman v. Holman, 472 N.E.2d 1279, 1288 (Ind. Ct.
App. 1985).
….
While we recognize the trial court’s “inherent authority to make
allowances for attorney fees … in the interest of seeing that
equity and justice is done on both sides[,]” Crowe v. Crowe, 247
Ind. 51, 211 N.E.2d 164, 167 (1965), the trial court “must
consider the resources of the parties, their economic condition,
the ability of the parties to engage in gainful employment and to
earn adequate income, and such other factors as bear on the
reasonableness of the award.” Barnett v. Barnett, 447 N.E.2d
1172, 1176 (Ind. Ct. App. 1983).
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Bertholet v. Bertholet, 725 N.E.2d 487, 501 (Ind. Ct. App. 2000) (first ellipsis
added).
[37] In the Decree, Father was ordered to pay $25,000 directly to Mother’s attorney,
Thomas O’Donnell. Father notes that according to O’Donnell’s affidavit of
attorney’s fees, Mother had incurred $41,950.21 in attorney’s fees, and
O’Donnell had been paid $31,000 against that obligation, presumably by
Mother. O’Donnell is, at most, personally owed a balance of $10,950.21.
Consequently, direct payment to O’Donnell of $25,000 represents a significant
overpayment, for which the trial court gave no reasons. We conclude that the
order of direct payment of the entire sum of $25,000 to O’Donnell represents an
abuse of discretion.
[38] That said, the overall award of $25,000 does not represent an abuse of
discretion because the trial court made several findings supporting an order
reimbursing Mother for payments she presumably has already made to
O’Donnell. As for the parties’ respective financial situations, the trial court
found that Father’s yearly income was $92,000 and Mother’s was $50,000 and
noted that while Father claimed that Intercon Solutions was insolvent, Father
had already incorporated a new company doing the same work for the former
clients of Intercon Solutions. Moreover, Father emerges from the dissolution
proceeding with several hundred thousand dollars in assets, and so is well able
to afford a $25,000 payment of attorney’s fees. Finally, the trial court made
several findings pointing to misconduct on Father’s part that would also
support an award of attorney’s fees, including that Father (1) was less than
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credible on numerous points, (2) appears to be an accomplished manipulator,
(3) has engaged in questionable and possibly illegal practices resulting in the
diversion of Intercon Solutions to himself, (4) has negatively influenced the
Children, and (5) dissipated significant marital assets. Under the
circumstances, we cannot conclude that the trial court abused its discretion in
awarding $25,000 in attorney’s fees to Mother. We remand with instructions
that Father be ordered to pay $10,950.21 to O’Donnell and $14,049.79 to
Mother for a total of $25,000 in attorney’s fees.
Conclusion
[39] We conclude that the trial court did not abuse its discretion in awarding
primary physical custody of the Children to Father, in calculating child support,
or in dividing the martial estate. As such, we affirm those portions of the
Decree. Moreover, we remand with instructions to order Father to satisfy his
$14,000 provisional maintenance arrearage. Finally, we conclude that the trial
court did abuse its discretion in ordering Father to pay all $25,000 in attorney’s
fees directly to O’Donnell and so remand with instructions to pay $10,950.21 to
O’Donnell and $14,049.79 to Mother.
[40] The judgment of the trial court is affirmed in part and reversed in part, and we
remand with instructions.
Pyle, J., and Altice, J., concur.
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