In Re The Marriage of Laura R. Chickadaunce and Mark A. Chickadaunce Laura R. Chickadaunce v. Mark A. Chickadaunce ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Apr 09 2013, 9:22 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
J. DAVID ROELLGEN NOAH L. GAMBILL
Kolb Roellgen & Kirchoff LLP Wagner, Crawford and Gambill
Vincennes, Indiana Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF LAURA R. )
CHICKADAUNCE and )
MARK A. CHICKADAUNCE, )
)
LAURA R. CHICKADAUNCE, )
Appellant-Petitioner, )
)
vs. ) No. 77A01-1206-DR-287
)
MARK A. CHICKADAUNCE, )
)
Appellee-Respondent. )
APPEAL FROM THE SULLIVAN SUPERIOR COURT
The Honorable Robert E. Springer, Judge
Cause No. 77D01-1111-DR-368
April 9, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Laura Chickadaunce (“Wife”) appeals the order dissolving her marriage to Mark
Chickadaunce (“Husband”). She argues on appeal the trial court should not have granted
joint legal and physical custody of the children, should have awarded Wife child support, and
should not have awarded certain assets to Husband. We affirm.
FACTS AND PROCEDURAL HISTORY
The facts favorable to the judgment are that Husband and Wife married in 2001 and
Wife filed for divorce ten years later. They have two children. Wife has a bachelor’s degree
in health services and an associate’s degree in occupational therapy. Husband has an
industrial technology degree and is a union electrician. In 2010, Husband and Wife agreed
Wife would reduce her hours at work in order to save on day care expenses. On average
between 2005 and 2010, Wife earned more than Husband, but both earned about $35.00 per
hour.
Husband is very much involved in the children’s lives. He gets them ready for school,
prepares meals, coaches their sports teams, and takes them fishing and to church. He has a
home prepared for him to live in with the children. He has no criminal record and requested
joint physical custody of the children.
In its findings of fact and conclusions of law, the trial court granted joint physical
custody of the children. The court did not order either party to pay child support, and it
imputed income to Wife based on the parties’ “income history” and their agreement during
the marriage Wife would work only part time to save on day care expenses. (App. at 9.) The
court divided the marital property almost equally; Wife received assets valued at $89,982.95
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and Husband received assets valued at $86,563.80.
DISCUSSION AND DECISION
The trial court entered findings of fact and conclusions thereon pursuant to Indiana
Trial Rule 52(A). In such a case, we cannot set aside the findings or judgment unless clearly
erroneous, and we give due regard to the opportunity of the trial court to judge the credibility
of the witnesses. Morfin v. Estate of Martinez, 831 N.E.2d 791, 801 (Ind. Ct. App. 2005).
First, we decide whether the evidence supports the findings. Id. Second, we determine
whether the findings support the judgment, construing the findings liberally in support of the
judgment. Id. A judgment is clearly erroneous if it is unsupported by the findings of fact and
conclusions thereon. Id. We do not reweigh the evidence or judge the credibility of the
witnesses and consider only the evidence supporting the judgment and the reasonable
inferences drawn therefrom. Id.
Appellate courts give considerable deference to the findings of the trial court in family
law matters. MacLafferty v. MacLafferty, 829 N.E.2d 938, 940-41 (Ind. 2005). We
recognize the trial judge “is in the best position to judge the facts, to get a feel for the family
dynamics, to get a sense of the parents and their relationship with their children -- the kind of
qualities that appellate courts would be in a difficult position to assess.” Id. Decisions that
change the results below are especially disruptive in the family law setting. Id.
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1. Child Custody
The trial court ordered each party would have equal time with the children.1 Wife
concedes “joint legal custody was never seriously disputed” below, but she asserts
physical custody with equal parenting time is impractical and is clearly
erroneous due to the distance between the homes of the parents, the history of
parenting time between Mark and Laura, the educational and physical needs of
the children, including residence, scheduling, routine and retaining as much
normalcy as possible under the circumstances of the divorce.
(Br. of Appellant at 6.)
In an initial custody determination, both parents are presumed equally entitled to
custody.2 Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). In deciding child custody, a court
should
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
(C) any other person who may significantly affect the child’s best
interests.
(5) The child’s adjustment to the child’s:
(A) home;
1
Wife argues the trial court was required to explain its “deviation” from the Parenting Time Guidelines.
(Reply Br. of Appellant at 3.) But the Guidelines apply to child custody situations involving joint legal
custody where one person has primary physical custody. Ind. Parenting Time Guidelines G1. In this case it is
not apparent that either party has “primary physical custody.”
2
Wife does not acknowledge this presumption or offer specific argument why it is overcome.
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(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.
The trial court heard ample evidence to support its determination joint physical
custody with equal parenting time was in the children’s best interests. There was evidence
Husband lives just twenty minutes away from the children’s school; was “highly interactive”
with the children, (Tr. at 77); he coached both of them in soccer and softball; he had a home
prepared for the children; the children have said they want to spend more time with Husband;
his work schedule allows him to take the children to school, and he has been involved with
schooling and helping the children with homework; and he and Wife are both “great
parent[s].” (Id. at 78.)
We acknowledge Wife’s evidence to the contrary, but we may not reweigh the
evidence that was before the trial court. See, e.g., Kondamuri v. Kondamuri, 852 N.E.2d
939, 945 (Ind. Ct. App. 2006) (to determine whether the findings or judgment are clearly
erroneous, we consider only the evidence favorable to the judgment and all reasonable
inferences flowing therefrom, and will not reweigh the evidence or assess witness
credibility). Therefore, we affirm the court’s decision to grant equal parenting time.
2. Child Support
The Child Support Guidelines do not directly address the calculation of child support
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in circumstances where the parents have been awarded joint physical custody of their
children. Sanjari v. Sanjari, 755 N.E.2d 1186, 1190-91 (Ind. Ct. App. 2001). There, we
found instructive the Commentary to Guideline 6 concerning split custody:
In those situations where each parent has physical custody of one or more
children (split custody), it is suggested that support be computed in the
following manner:
1. Compute the support a father would pay to a mother for the children in her
custody as if they were the only children of the marriage.
2. Compute the support a mother would pay to a father for the children in his
custody as if they were the only children of the marriage.
3. Subtract the lesser from the greater support amount.
4. The parent who owes the greater amount of support pays the difference
computed in step 3, above.
Id. (quoting Child Supp. G6 cmt).
But we did not “suggest that all other support calculation methods are foreclosed in
joint physical custody situations.” Sanjari, 755 N.E.2d at 1190. As the Commentary to
Guideline 6 states, “infinite possibilities exist in terms of time spent with each parent, travel
between parents and other considerations.” Id. Such determinations are left to the sound
discretion of the trial courts for handling on a case-by-case basis. In re Marriage of Turner,
785 N.E.2d 259, 264 (Ind. Ct. App. 2003).
In Sanjari, the parents spent equal time with their children and lived in the same
geographical area. There was no testimony that either parent incurred extraordinary medical
expenses or extraordinary expenditures on behalf of the children. We remanded for a
calculation of child support obligations of both parents consistent with the methodology
described in the Commentary to Guideline 6. 755 N.E.2d at 1190-91.
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Wife appears to argue the trial court’s order was an abuse of discretion because it
should not have imputed income to her, and its imputation of income had the effect of
depriving the children of the standard of living they would have enjoyed had the marriage not
been dissolved. See Payton v. Payton, 847 N.E.2d 251, 253 (Ind. Ct. App. 2006) (child
support awards under the Guidelines are designed to provide the children as closely as
possible with the same standard of living they would have enjoyed had the marriage not been
dissolved.)
Trial courts may impute income to a parent for purposes of calculating child support
after determining that parent is voluntarily unemployed or underemployed. Sandlin v.
Sandlin, 972 N.E.2d 371, 375 (Ind. Ct. App. 2012). To determine whether potential income
should be imputed, the trial court should review work history, occupational qualifications,
prevailing job opportunities, and earning levels in the community. Id. When a parent has
some history of working and is capable of entering the work force, but voluntarily fails or
refuses to be employed in a capacity in keeping with his or her capabilities, such a parent’s
potential income should be determined to be a part of the gross income of that parent. Child
Supp. G. 3, cmt. 2(c)(2). The amount to be attributed as potential income in such a case
would be the amount the evidence demonstrates he or she was capable of earning in the past.
Id.
There was evidence before the trial court that the parties agreed during the marriage
Wife would work fewer hours to reduce day care expenses, and in the years before the parties
made that agreement, Wife earned more than Husband. Wife has a bachelor’s degree in
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health services and an associate’s degree in occupational therapy. We cannot say the
imputation of income to Wife was an abuse of discretion.
3. Division of Property3
The division of marital assets lies within the sound discretion of the trial court, and we
will reverse only for an abuse of discretion. Sanjari, 755 N.E.2d at 1191. When a party
challenges the division of marital property, she must overcome a strong presumption that the
court considered and complied with the applicable statute, and that presumption is one of the
strongest presumptions applicable to our consideration on appeal. Woods v. Woods, 788
N.E.2d 897, 900 (Ind. Ct. App. 2003). We may not reweigh the evidence or assess the
credibility of witnesses, and we will consider only the evidence most favorable to the trial
court’s disposition of the marital 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.
Ind. Code § 31-15-7-5 provides an equal division of the marital property between the
parties is presumed “just and reasonable.” The trial court’s “Marital Estate Summary,” (App.
at 13-15), itemizes the parties’ assets in detail. It awards Wife slightly more than Husband --
$89,982.95 for Wife and $86,563.80 for Husband.
Wife does not argue that summary was incorrect. She appears to argue the property
division was an abuse of discretion because it awarded a disproportionate amount of the
3
Wife’s Statement of Facts includes no information about what the property division was. It says Wife
“requested,” (Br. of Appellant at 3), some attorney fees and cash equalization payments, but it does not
indicate whether or how the trial court addressed those requests.
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“liquid assets,” (Br. of Appellant at 4), to Husband, leaving Wife “property rich and cash
poor.” (Id. at 5.) This, she asserts without explanation or citation to authority, demonstrated
the court did not consider her economic circumstances as required by Ind. Code § 31-15-7-5,
which provides the court is to presume that an equal division of the marital property between
the parties is just and reasonable, but the presumption may be rebutted by evidence of “[t]he
economic circumstances of each spouse at the time the disposition of the property is to
become effective.”
As Wife offers no explanation or legal authority to support her apparent premise that a
roughly-equal property division might be an abuse of discretion based solely on the nature of
the property awarded rather than its value, we are unable to address that allegation of error.
Ind. Appellate Rule 46(A)(8)(a) states that the argument section of an appellant’s brief “must
contain the contentions of the appellant on the issues presented, supported by cogent
reasoning. Each contention must be supported by citations to the authorities, statutes, and the
Appendix or parts of the Record on Appeal relied on.” We will not consider an appellant’s
assertion on appeal when she has not presented cogent argument supported by authority and
references to the record as required by our rules. Thacker v. Wentzel, 797 N.E.2d 342, 345
(Ind. Ct. App. 2003). If we were to address such arguments, we would abdicate our role as
an impartial tribunal and would instead become an advocate for one of the parties. See id.
We decline to do so.
Wife has not demonstrated the trial court abused its discretion in ordering joint
physical custody, in dividing the marital property roughly equally, or in declining to award
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child support. We accordingly affirm.
Affirmed.
ROBB, C.J., and PYLE, J., concur.
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