Kristopher G. Richter v. Kaylie E. Sexton (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 16 2018, 7:36 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE
Kristopher G. Richter
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kristopher G. Richter, August 16, 2018
Appellant, Court of Appeals Case No.
71A03-1710-JP-2394
v. Appeal from the St. Joseph Probate
Court
Kaylie E. Sexton, The Honorable James C. Stewart-
Appellee. Brown, Magistrate
Trial Court Cause Nos.
71J01-1601-JP-46
71J01-1601-JP-47
Brown, Judge.
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[1] Kristopher G. Richter (“Father”) appeals the trial court’s Order Confirming
Paternity. Father raises six issues which we revise and restate as:
I. Whether the trial court abused its discretion in ordering Father to
pay attorney fees;
II. Whether the court erred in ordering Father to undergo a
psychological examination;
III. Whether the court erred in its determination of Father’s child
support obligation;
IV. Whether the court erred in not granting Father’s motion to change
judge;
V. Whether the court erred in granting Mother primary physical and
legal custody; and
VI. Whether the court abused its discretion in denying Father’s
motion for a continuance.
We affirm.
Facts and Procedural History
[2] Kaylie E. Sexton (“Mother”) and Father had two children: G.R., born in June
2012, and E.R., born in June 2013. On January 20, 2016, Mother filed a
Petition to Establish Rights Incident to Paternity Pursuant to Ind. Code § 16-37-
2-2.1.1 On January 27, 2016, Mother filed a “Verified Emergency Petition to
Establish Parenting Time, for Supervised Parenting Time and for Appointment
1
The petition included in the record lists only G.R. and cause number 71J01-1601-JP-46 (“Cause No. 46”).
The record does not include a copy of the chronological case summary for cause number 71J01-1601-JP-47
(“Cause No. 47”). In his statement of the case, Father cites to Mother’s petition and asserts that she was
seeking full custody of G.R. and E.R. On March 7, 2017, the trial court consolidated Cause Nos. 46 and 47.
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of GAL.” Appellant’s Appendix Volume II at 32. That same day, the court
entered an order denying Mother’s petition “as no emergency [was] alleged,”
stating that it reviewed both Paternity Affidavits, and noting that parents may
have an agreement to share joint legal custody, that a provision clearly
indicated that Mother would have primary physical custody, and Mother
therefore had the sole right to determine the physical location and day-to-day
care of her children subject to the terms of the Paternity Affidavit.
[3] On March 3, 2016, Father filed a motion for continuance stating that the parties
had agreed to a continuance “in order to hold a possible 4-way meeting.” Id. at
39. That same day, the court granted the continuance and scheduled a hearing
for April 14, 2016.
[4] In April 2016, Mother’s counsel filed a Notice of Agreed Guardian ad Litem
asserting the parties agreed that Brian Gates shall be appointed guardian ad
litem, and Gates was appointed.
[5] On May 4, 2016, Father’s attorney withdrew his appearance and Father then
proceeded pro se. On May 20, 2016, Father filed a Motion to Request Hearing,
a Motion to Establish Paternity, a motion to vacate the court’s April 22, 2016
order appointing the guardian ad litem, and a motion for stay. On May 27,
2016, Father filed a Verified Emergency Petition for Physical Custody. On
June 6, 2016, the court entered an order stating that it did not believe an
emergency existed and interpreting Father’s pleadings as an objection to
Mother’s relocation.
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[6] On June 29, 2016, the court held a status hearing and entered an order which
vacated the appointment of Gates, indicated it would appoint another attorney
to serve as guardian ad litem, and ordered parents to fully cooperate with the
guardian ad litem investigation and completion of the report. On July 5, 2016,
the court appointed Nicholas Artusi (“GAL Artusi”) as the guardian ad litem.
[7] On July 15, 2016, Father filed a verified motion for contempt alleging Mother
denied his right to visitation on Memorial Day weekend, intended on taking the
children out of town without his permission, and interfered with child custody.
On July 20, 2016, the court entered an order finding that Father based his
motion for contempt on the assumption that he and Mother share joint legal
custody, and noting that the Paternity Affidavit executed by the parties
indicates that Father and Mother wished to share joint legal custody and that
this provision “to be considered valid, must be accompanied with genetic test
results obtained within 60 days of the execution of the affidavit and same to be
submitted to the Health Department also within 60 days of execution,” and
“[f]or this reason, until Father can show otherwise, Mother has sole legal and
physical custody and any parenting time is at her sole discretion.” Appellant’s
Appendix Volume III at 2.
[8] On August 9, 2016, Father filed notices of subpoenas duces tecum requesting
the medical or mental health records of G.R. and E.R. and requests for
production of documents. It also filed a “Motion to Vacate Order and Compel
an Order to Show Cause” alleging in part that he submitted to a DNA test and
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moving the court to enter the test “as further authentication of the paternity of
his ‘Children’.” Id. at 31, 34.
[9] On September 19, 2016, Father filed subpoenas duces tecum for Mother’s cell
phone records and the children’s daycare records. Mother followed with an
objection to Father’s non-party discovery requests and request for attorney fees.
On September 23, 2016, Father filed an “OPPOSITION” to Mother’s
objection. Appellant’s Appendix Volume IV at 2-7.
[10] On December 8, 2016, the court held a hearing and entered an order stating
that Mother, GAL Artusi, and Mother’s attorney appeared for the hearing and
Father did not appear, and dismissed Father’s August 9, 2016 motion with
prejudice.
[11] On December 29, 2016, Father filed a Verified Motion for Modification of
Visitation, and on December 30, 2016, he filed a motion to change judge and a
motion for stay. On January 3, 2017, he filed an “Amended Motion to Vacate
Order,” asserting in part that he sought “relief from the Order Dismissing Motion
to Vacate Order and Compel an Order to Show Cause.” Id. at 94-95. That same day,
GAL Artusi filed a Motion in Opposition to Father’s Motion to Vacate Order.
On January 4, 2017, the court denied Father’s motion to change judge.
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[12] In a letter dated January 6, 2017, and titled Supplemental Guardian Ad Litem
Report to the Court,2 GAL Artusi recommended in part that Mother be granted
physical custody of the children, the parties be granted legal custody of the
children, and Father be granted parenting time in accordance with the Indiana
Parenting Time Guidelines. The report also recommended:
5) Father is required to undergo an initial intake with Oaklawn
or another facility equivalent to Oaklawn. If Father is
recommended to undergo additional services he is to follow the
recommendation of the health care provider. Father is instructed
to sign all necessary release forms to allow me access to his files
and if medication is prescribed that information is made available
to all parties in the case including what the medication is, how
often it is taken, side effects and the length in which the
medication will be taken.
Appellant’s Appendix Volume V at 81.
[13] On February 1, 2017, Father filed subpoenas duces tecum for Mother’s salary
stubs or wage statements and income tax returns and Mother’s witness list or
witness affidavits for hearing. On February 3, 2017, Father filed a motion for
enlargement of time to respond to the Supplemental Guardian ad Litem Report
to the Court and a Motion to Certify Interlocutory Order and for Stay
requesting that the court certify for appeal its January 4, 2017 order denying his
motion for change of judge. On February 7, 2017, he filed an Amended
2
The report stated: “This is the first report issued on this matter.” Appellant’s Appendix Volume V at 72.
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Motion to Strike asserting in part that the court should strike GAL Artusi’s
supplemental report and “specifically recommendation number five (5), as
scandalous matter that has no merit.” Appellant’s Appendix Volume IV at 126.
On February 15, 2017, he filed a Motion for Relief from Order pursuant to Ind.
Trial Rule 60(B).
[14] On March 2, 2017, the court held a hearing. The court acknowledged that the
parties had discovery to exchange and, when asked by the court what Father
had for Mother’s attorney, he answered in part that he had “the TPD actual
contract and copy of the check from the workmans comp payment, and then I
also have proof of income from unemployment.” Transcript Volume II at 36.
In discussing discovery Father sought, Mother testified that the children had
been covered by insurance through her employer up until three months earlier
and had been on Medicaid or the Healthy Indiana plan since then. Id. at 42.
She indicated she could provide Father the insurance cards in a couple of days.
After further discussion, the court stated: “[W]e’re not at trial, we’re just, I’m
just trying to do a little case management while we’re all here anyway.” Id. at
70. Upon questioning by the court, Father stated that he was not working, was
“off unemployment, but that will be resolved in the next week,” and that he
was looking for work. Id. at 102. Mother stated that she was working at a
hospital earning $13.50 per hour, worked thirty hours per week, and paid $40
per week to a childcare provider. The court then passed out a Child Support
Obligation Worksheet “based on the information that was just provided under
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oath to the Court.” Id. at 105. The following exchange occurred between the
court and Father:
THE COURT: . . . Sir, I did impute you at full time minimum
wage income as you are able bodied and capable of work. Uh, I
did not compute any other income. Now, this is temporary in
the truest sense of the word, okay, meaning it will be effective
today. The matter of retroactivity and what support should be on
a longer term basis going forward or retroactive will be still be
decided by the Court at a future date. This is simply to, uh,
provide support between now and the time the Court enters a
more permanent order. I will also enter a temporary order
regarding parenting time. Father will have parenting time for
two nights every other weekend – thank you – as is the current
schedule, as well as one midweek parenting time. I am not
ordering standard Indiana Parenting Time Guidelines right now,
but this is going to be, again, just like the child support order
temporary in the truest sense of the word, meaning we will
basically ignore what the Court just did when we decide this in
the future. I believe this will not prejudice [Father] as the
extended parenting time would not even necessarily come into
play because the Court anticipates holding a hearing and entering
a permanent order in the immediate future. Does that make
sense to you, sir?
[Father]: That makes sense.
Id. at 105-106.
[15] On March 7, 2017, the court entered an order scheduling an evidentiary hearing
on all pending issues for May 9, 2017, sustaining Mother’s objection to Father’s
request for production of documents for her attendance records at work as well
as cellular phone services providers’ records, denying Father’s request for an
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interlocutory appeal, noting that GAL Artusi reported that he will have a
supplemental report completed within thirty days, and ordering Father to meet
with GAL Artusi on March 7, 2017. The order also stated that Father was to
pay the temporary amount of $79 per week child support effective March 2,
2017, and that, on a temporary basis, he would have parenting time two
overnights every other weekend and one midweek non-overnight.
[16] Father subsequently filed a subpoena duces tecum for Mother’s college and
clinical schedule, a Motion to Compel Discovery, and a motion requesting the
court to vacate its March 7, 2017 order pursuant to Trial Rule 60(B).
[17] On April 20, 2017, the court held a status hearing, the parties discussed
discovery, Father indicated he was still waiting for a more specific work
schedule from Mother, and the court ordered Mother to turn over a work
schedule within seven days. Father noted his request for a continuance, and the
court stated that it did not think it would be in the children’s best interests to
delay trial any further, that Father could have “brought a lot of those matters to
the Court long before and . . . chose not to,” and that the court had mentioned
at the last hearing that Father proceeding without counsel was a bad idea. Id. at
145. The court asked Father if he was working, and he replied: “I will be
working in the next couple weeks temporary . . . .” Id. at 146. That same day,
the court entered an order denying Father’s request to continue the trial and
confirming the evidentiary hearing scheduled for May 9, 2017.
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[18] On April 24, 2017, Father filed a motion for continuance alleging in part that a
medical care provider informed him that “once the medical record
authorization form is complete, there will be a three (3) to six (6) week
turnaround time for Father to receive copies of the medical records.”
Appellant’s Appendix Volume V at 26. In a supplemental report dated April
25, 2017, GAL Artusi indicated he interviewed Father’s brother, David Richter
(“David”), and Mother’s sister, Gabby Sexton (“Gabby”), and again
recommended that Father undergo an initial intake with Oaklawn or another
equivalent facility.
[19] On May 8, 2017, Father filed a motion to compel discovery referencing his
subpoena duces tecum for Mother’s college and clinical schedule and another
motion for a continuance in which he alleged that he requested a copy of the
investigation file pursuant to Ind. Code § 31-17-2-12(c)(1)(2)(3) on March 23,
2017, and that he finally received the information requested on May 5, 2017.
[20] On May 9, 2017, the court held a hearing, denied Father’s motion to compel,
and denied Father’s motion for continuance. GAL Artusi testified regarding
his concerns with Father. Mother testified that she lived with Father until
December 2015 and removed herself and the children from that situation
because there were episodes of paranoia and delusions and a history of
domestic violence. She testified that she was employed as a phlebotomist and a
server and was in the nursing program at Bethel College, that she was always
the primary caregiver, that she found a tape recorder in their apartment when
she lived with Father, the electrical outlets were taken apart, the smoke
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detectors were taken down, Father was looking for cameras, and he would be
searching the carport all hours of the night. She stated that he dismantled one
of the air fresheners and an alarm clock and that his accusations scare her.
[21] Mother’s counsel referred to the allegations in Father’s May 27, 2016 Verified
Emergency Petition for Physical Custody, and Mother indicated that Father
was alleging she stole the children’s television he had bought them and that he
had awoken to find Mother standing in his living room dressed in scrubs
looking into his eyes before running out the back door. Mother testified that
she did not break into Father’s house or stand over him while he was asleep and
that such allegations show that Father has a delusional state of mind.
[22] Father presented testimony from three of his neighbors who stated that the
children seemed happy around him and he had not displayed any paranoia.
Father called Mother as a witness and, when asked why she filed her petition to
establish supervised parenting time and appointment of guardian ad litem, she
responded that Father took the children from daycare for four days, did not
return them, and was making accusations of “planting tape recorders, looking
for tape recorders, looking for cameras . . . .” Transcript Volume III at 95.
[23] Father testified, as an explanation for one of the photographs Mother
introduced, that he “lost about forty grand cash and quarter of a million out on
a contract” in 2014 and punched a hole in the wall when no one was home. Id.
at 105. He also testified that he injured his hand in May 2014 and was placed
on restricted duty work, and that he had surgery and eight months of physical
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therapy and quit working on “January 1st of 2015.” Id. at 128. He stated that
he “worked there until the 1st of January, 2016” and “since then I’ve been going
through . . . a workmans comp battle . . . .” Id. at 129. He testified that his
hand was “getting better,” he was starting a seasonal job the next week, and
“they’re working around my school schedule.” Id. at 130.
[24] Father addressed his financial stability and stated: “My bills are paid, I’ll take
care of myself, I’ll be back to work in a week and I’ll be able to provide
whatever I have to for my children.” Id. at 131. He testified that he was a full-
time student and that Bethel College was more than $14,000 a semester and he
had attended Bethel since the previous fall. He stated he had been an
electrician in three or four factories and denied taking apart the alarm clock or
air freshener. He also stated that the statements attributed to his mother and
brother in GAL Artusi’s report were fabricated because his mother owes him
over $100,000 and he and his brother “don’t get along.” Id. at 172. On
redirect, Father testified that his financial aid covers his tuition “100 percent out
of one semester for half of a class. . . . [I]t costs me between two and five
hundred dollars a year, it’s like three something a year to go to school at
Bethel.” Id. at 174. Father stated that he signed a settlement agreement for his
worker’s compensation, and the court admitted a letter from an attorney for
Father’s employer which stated that he had agreed to settle for $5,500.
[25] On September 12, 2017, the court entered an order that: confirmed Father as
the father of G.R. and E.R.; granted Mother primary physical custody; ordered
Father to undergo a psychological assessment and follow-up with any treatment
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recommendations; found Mother’s testimony to be more compelling than
Father’s; found that Father’s filings had been repetitive, frivolous, and invasive;
granted a temporary award of joint legal custody to Mother and Father to
become permanent following Father’s compliance with the psychological
assessment; ordered Father to pay $79 per week in child support plus $21 per
week on the arrearage and $1,000 out of the proceeds he receives from his
worker’s compensation settlement; ordered Father to notify Mother’s counsel
when he receives the settlement, the total amount he receives, and to disclose
where the rest of the money is spent; and ordered Father to pay Mother’s
counsel $6,778.75 based on the volume and nature of Father’s filings.
Discussion
[26] Before addressing Father’s arguments, we note that Mother did not file an
appellee’s brief. When an appellee fails to submit a brief, we do not undertake
the burden of developing arguments, and we apply a less stringent standard of
review, that is, we may reverse if the appellant establishes prima facie error.
Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was
established so that we might be relieved of the burden of controverting the
arguments advanced in favor of reversal where that burden properly rests with
the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002).
Questions of law are still reviewed de novo. McClure v. Cooper, 893 N.E.2d 337,
339 (Ind. Ct. App. 2008).
I.
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[27] The first issue is whether the trial court abused its discretion in ordering Father
to pay attorney fees. Father argues that he was unemployed for a period of time
but has since gained employment which is less than the income Mother earns,
he suffered a work-related injury in May of 2014 making it difficult for him to
obtain stable high-paying work without a college degree, he has incurred severe
financial hardships due to Mother’s initiation of this action, and Mother has
refused to provide him with certain requested information resulting in him filing
subpoenas duces tecum.
[28] Generally, Indiana has consistently followed the American Rule in which both
parties pay their own fees. Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d
806, 815-816 (Ind. 2012). In the absence of statutory authority or an agreement
between the parties to the contrary—or an equitable exception—a prevailing
party has no right to recover attorney fees from the opposition. 3 Id. at 816.
[29] Father cites Ind. Code § 34-52-1-1, which provides:
(a) In all civil actions, the party recovering judgment shall
recover costs, except in those cases in which a different provision
is made by law.
(b) In any civil action, the court may award attorney’s fees as part
of the cost to the prevailing party, if the court finds that either
party:
3
There are three well-established common-law exceptions to the American Rule: the “obdurate behavior”
exception, the “common fund” exception, and the “private attorney general” exception. Indiana embraces
the first two of these and not the third. Loparex, LLC, 964 N.E.2d at 816 n.5.
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(1) brought the action or defense on a claim or defense that
is frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the
party’s claim or defense clearly became frivolous,
unreasonable, or groundless; or
(3) litigated the action in bad faith.
[30] Pursuant to Ind. Code § 31-14-18-2(a)(2), the trial court in a paternity action
may order a party to pay a reasonable amount for attorney fees incurred by the
other party. In making such an award, the court should consider the parties’
resources, their economic conditions, their respective earning abilities, and
other factors that bear on the reasonableness of the award. In re Paternity of
S.A.M., 85 N.E.3d 879, 890 (Ind. Ct. App. 2017). The court may also consider
any misconduct by one party that causes the other party to directly incur fees.
Id. See also Ind. Code § 31-16-11-1 (providing that a trial court may periodically
order a party to a child support proceeding to pay a reasonable amount for
attorney fees); Ind. Code § 31-17-7-1 (same for proceedings for modification of
custody and parenting time).
[31] The trial court ordered Father to pay Mother’s attorney fees accrued following
the withdrawal of his counsel “[b]ased on the volume and nature of Father’s
filings.” Appellant’s Appendix Volume V at 69. The record reveals that Father
filed numerous pro se motions and petitions following the withdrawal of his
attorney which required Mother to incur attorney fees. We note that Father
failed to appear for the December 8, 2016 hearing, at which the court dismissed
Father’s August 9, 2016 motion with prejudice. During the May 9, 2017
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hearing, the court referenced the significant amount of time Father had to serve
discovery requests and stated that it did not believe the information Father
sought would help the court make a decision. In light of Father’s numerous
motions and petitions and under the circumstances, we cannot say the trial
court abused its discretion by ordering Father to pay Mother’s attorney fees
following the withdrawal of his counsel.
II.
[32] The next issue is whether the trial court erred in ordering Father to undergo a
psychological examination. Father asserts that no good cause was ever
established and that Ind. Trial Rule 35 limits an examination to a physician and
the court erroneously ordered him to undergo a psychological assessment at
Oaklawn or another community health service provider. He also asserts that
the order to release any potential medical records or treatments to the guardian
ad litem and Mother is a direct violation of his physician-patient privilege and
Ind. Code §§ 16-39-3-3, -4, -5, and -7.
[33] Ind. Trial Rule 35(A) provides:
When the mental or physical condition (including the blood
group) of a party, or of a person in the custody or under the legal
control of a party, is in controversy, the court in which the action
is pending may order the party to submit to a physical or mental
examination by a suitably licensed or certified examiner or to
produce for examination the person in his custody or legal
control. The order may be made only on motion for good cause
shown and upon notice to the person to be examined and to all
parties and shall specify the time, place, manner, conditions, and
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scope of the examination and the person or persons by whom it is
to be made.
[34] In his letter dated January 6, 2017, GAL Artusi wrote that he interviewed
Mother who noted some major concerns about Father and his mental stability.
His letter stated that “[a]s [the children] are very young, both under the age of
5, if Father is experiencing issues with paranoia, bi-polar, depression or fits of
anger then this directly impacts the children and their mental and physical
health moving forward.” Appellant’s Appendix Volume V at 75. GAL Artusi
also stated that he found it hard to believe the truthfulness and veracity of a
number of statements made to him by Father, that he shared many concerns
with Mother relating to Father’s current mental stability, and that “[a]t the end
of the day I believe that my analysis is spot on that Father is suffering from
some type of mental deficiency or illness.” Id. at 80.
[35] In his April 25, 2017 report, GAL Artusi indicated that he spoke to Father’s
brother, David, who “talked about the fact that [Father] has always had a sense
of paranoia in his life,” and told him that a court had previously ordered a
psychological evaluation, and that Father did not follow through. Id. at 86.
GAL Artusi reported that he spoke with Father’s mother who was very
reluctant to speak about the case but confirmed that there was a court
proceeding in Illinois approximately ten years ago and that Father “twisted her
actions to be evil and that this was not her intent at all.” Id. at 87. GAL Artusi
also reported that he spoke with Mother’s sister, Gabby, who reiterated a
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number of things he heard from Mother and David and said that Father was
paranoid and “thinks someone is out to get him.” Id. at 88.
[36] At the May 9, 2017 hearing, GAL Artusi was questioned about his interviews
with David, Gabby, and Mother, and stated his concern for the children when
they are around Father.
[37] We observe that the court ordered that the psychological assessment be marked
and filed as confidential. Based upon the record, including GAL Artusi’s
testimony and reports as well as Mother’s testimony, which the court found
more credible than Father’s testimony, and considering the best interests of the
children, we cannot say that reversal is warranted.
III.
[38] The next issue is whether the court abused its discretion in determining Father’s
support obligation. Father argues that he is a full-time student and was
unemployed for six months in 2016 due to work restrictions from an injury, and
that his support obligation should be calculated on his actual gross income. He
also argues that the trial court abused its discretion in ordering him to disclose
to Mother’s counsel where the remainder of his worker’s compensation
settlement is spent. He asserts that Ind. Trial Rule 26(C) protects him from a
fishing expedition, that this information is irrelevant, and that Mother’s counsel
never requested the disclosure of this information.
[39] Ind. Code § 31-16-6-1 provides:
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(a) In an action for . . . child support under IC 31-16-2, or
establishment of paternity under IC 31-14, the court may order
either parent or both parents to pay any amount reasonable for
support of a child, without regard to marital misconduct, after
considering all relevant factors, including:
(1) the financial resources of the custodial parent;
(2) the standard of living the child would have enjoyed if:
(A) the marriage had not been dissolved;
(B) the separation had not been ordered; or
(C) in the case of a paternity action, the parents had
been married and remained married to each other;
(3) the physical or mental condition of the child and the
child’s educational needs; and
(4) the financial resources and needs of the noncustodial
parent.
[40] Decisions concerning the payment of child support rest within the sound
discretion of the trial court. Douglas v. Spicer, 8 N.E.3d 712, 714-715 (Ind. Ct.
App. 2014), reh’g denied. On review, we will reverse a trial court’s decision in
child support matters where we find that there was an abuse of discretion or if
the trial court’s determination on the issue is contrary to law. Id.[41] Child Support Guideline 3A addresses the definition of weekly gross income for
purposes of determining child support. Paragraph 1 of Child Support Guideline
3A provides that “‘weekly gross income’ is defined as actual weekly gross
income of the parent if employed to full capacity, potential income if
unemployed or underemployed, and imputed income based upon ‘in-kind’
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benefits” and “includes, but is not limited to, income from salaries, wages, . . .
social security benefits, workmen’s compensation benefits, unemployment
insurance benefits, disability insurance benefits, gifts, inheritance, . . . .”
[42] Paragraph 3 of Child Support Guideline 3A provides:
Unemployed, Underemployed and Potential Income. If a court finds a
parent is voluntarily unemployed or underemployed without just
cause, child support shall be calculated based on a determination
of potential income. A determination of potential income shall
be made by determining employment potential and probable
earnings level based on the obligor’s work history, occupational
qualifications, prevailing job opportunities, and earnings levels in
the community. If there is no work history and no higher
education or vocational training, the facts of the case may
indicate that Weekly Gross Income be set at least at the federal
minimum wage level.
[43] Paragraph 2 of the Commentary to Child Support Guideline 3A provides in
part: “Potential income may be determined if a parent has no income, or only
means-tested 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.”
[44] The record does not contain a copy of the worksheet referred to by the court.
Transcript Volume III at 130. Father addressed his financial stability and
stated: “My bills are paid, I’ll take care of myself, I’ll be back to work in a week
and I’ll be able to provide whatever I have to for my children.” Id. at 131. He
indicated that he was going to start working at a lawn care company earning ten
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dollars per hour and Jake’s Fireworks earning nine dollars per hour and would
work between thirty and forty hours between both jobs. He stated that he was
paying rent on his house and that “There was money that I had . . . and my
dad’s been loaning me some money as well until my injury got to the point
where I could work again.” Id. at 159. On redirect, Father stated:
I’m not objecting to paying support. You order me to pay
support, I’ll pay support. I – I addressed with him that – And
anything that from the order on is owed will be paid the minute I
get it this check and when it comes to arrearage I don’t know
how that works. So if it’s coming out per week I can do it that
way and, and then make another large sum payment towards it
so she, she can get some of it back right away. I don’t know, but
I can guarantee from the court order on is paid and I’ll be paying
going forward and then whatever arrearage is tacked on to that
but I will make an additional payment. The tuition at Bethel that
you brought up. Yes, Bethel is expensive, but my financial aid
covers my Bethel tuition 100 percent out of one semester for half
of a class. So to put it in the Court’s perspective it costs me
between two and five hundred dollars a year, it’s like three
something a year to go to school at Bethel.
Id. at 174.
We cannot say that the trial court abused its discretion in ordering that Father
pay child support in an amount calculated based upon the federal minimum
wage.
[45] To the extent Father challenges the court’s order that he produce an accounting
related to his worker’s compensation settlement, we cannot say that such an
accounting order is not a legitimate exercise of the trial court’s authority to
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make inquiry regarding the financial resources available to the parties for
support. See Ind. Code § 31-16-6-1 (providing that “the financial resources and
needs of the noncustodial parent” is a relevant factor in determining a
reasonable amount for child support”). Under the circumstances, the court did
not abuse its discretion in entering the accounting order.
IV.
[46] The next issue is whether the trial court erred by denying Father’s motion for
change of judge. Ind. Trial Rule 76 provides in part:
(B) In civil actions, where a change may be taken from the judge,
such change shall be granted upon the filing of an unverified
application or motion without specifically stating the ground
therefor by a party or his attorney. Provided, however, a party
shall be entitled to only one [1] change from the judge. After a
final decree is entered in a dissolution of marriage case or
paternity case, a party may take only one change of judge in
connection with petitions to modify that decree, regardless of the
number of times new petitions are filed. The Rules of Criminal
Procedure shall govern proceedings to enforce a statute defining
an infraction.
(C) In any action except criminal no change of judge or change
of venue from the county shall be granted except within the time
herein provided. Any such application for change of judge (or
change of venue) shall be filed not later than ten [10] days after
the issues are first closed on the merits. Except:
(1) in those cases where no pleading or answer may be
required to be filed by the defending party to close issues
(or no responsive pleading is required under a statute),
each party shall have thirty [30] days from the date the
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case is placed and entered on the chronological case
summary of the court as having been filed . . . .
[47] On January 20, 2016, Mother filed a Petition to Establish Rights Incident to
Paternity Pursuant to Ind. Code § 16-37-2-2.1. Father did not file his motion
for change of judge until December 30, 2016.4 Father had only thirty days in
which to file his request pursuant to Ind. Trial Rule 76(C) from the date the
case was entered on the chronological case summary in January 2016.
Accordingly, we cannot say that reversal is warranted on this basis.
V.
[48] The next issue is whether the trial court erred in determining the custody of
children. The court’s findings control as to the issues they cover and a general
judgment will control as to the issues upon which there are no findings. Yanoff
v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made
findings of fact, we apply the following two-tier standard of review: whether the
evidence supports the findings of fact, and whether the findings of fact support
the conclusions thereon. Id. Findings will be set aside if they are clearly
erroneous. Id. Findings are clearly erroneous only when the record contains no
facts to support them either directly or by inference. Id. A judgment is clearly
erroneous if it applies the wrong legal standard to properly found facts. Id. To
4
The motion is titled “MOTION TO CHANGE JUDGE” with the handwritten word “Amended” prior to
the title. Appellant’s Appendix Volume IV at 89. In his brief, Father does not assert that any motion for
change of judge was filed earlier.
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determine that a finding or conclusion is clearly erroneous, our review of the
evidence must leave us with the firm conviction that a mistake has been made.
Id. A general judgment entered with findings will be affirmed if it can be
sustained on any legal theory supported by the evidence. Id.[49] A trial court’s custody determination is afforded considerable deference as it is
the trial court that sees the parties, observes their conduct and demeanor, and
hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945-946 (Ind.
Ct. App. 2006). Thus, on review, we will not reweigh the evidence, judge the
credibility of witnesses, or substitute our judgment for that of the trial court. Id.
at 946. We will reverse the trial court’s custody determination only if it is
clearly against the logic and effect of the facts and circumstances or the
reasonable inferences drawn therefrom. Id.[50] The standard for an initial custody determination is set forth in Ind. Code § 31-
14-13-2, which provides:
The court shall determine custody in accordance with the best
interests of the child. In determining the child’s best interests,
there is not a 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 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:
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(A) the child’s parents;
(B) the child’s siblings; and
(C) any other person who may significantly affect
the child’s best interest.
(5) The child’s adjustment to home, school, and 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 2.5(b) of this chapter.
[51] At the May 9, 2017 hearing, GAL Artusi testified that he continued to believe
that granting Mother physical custody of the children was in their best interests.
When asked by Father if he thought it would be appropriate to have joint legal
and physical custody, GAL Artusi answered: “Currently, no.” Transcript
Volume II at 203. Based upon the record, we conclude that the trial court did
not err in granting Mother primary physical custody of the children and a
temporary award of joint legal custody to Mother and Father with the grant
becoming permanent following Father’s compliance with the order.
VI.
[52] The next issue is whether the court abused its discretion in denying Father a
continuance. Father points to his subpoena duces tecum for Mother’s college
and clinical schedule and argues that these requested records “were material to
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prove or disprove a specific fact and/or a particular element in issue, pertaining
to the wellbeing of the children while in the care of a third party without the
presence of Mother and/or Father.” Appellant’s Brief at 42. He contends that
he was seeking to prove or disprove his “right of first refusal and possible
endangerment of children in the care of a third party.” Id. at 43. He also argues
that he did not receive GAL Artusi’s case file until May 5, 2017, he was
required to receive the file at least ten days prior to trial which occurred on May
9, 2017, and that GAL Artusi’s actions did not give him adequate time to
prepare a defense or serve subpoenas to any persons interviewed by GAL
Artusi.
[53] The decision to grant or deny a motion for a continuance is within the sound
discretion of the trial court. Litherland v. McDonnell, 796 N.E.2d 1237, 1240
(Ind. Ct. App. 2003), trans. denied. We will reverse the trial court only for an
abuse of that discretion. Id. “An abuse of discretion may be found on the
denial of a motion for a continuance when the moving party has shown good
cause for granting the motion.” Rowlett v. Vanderburgh Cty. Office of Family &
Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied; see Trial Rule
53.5. A trial court abuses its discretion when it reaches a conclusion which is
clearly against the logic and effect of the facts or the reasonable and probable
deductions which may be drawn therefrom. Hess v. Hess, 679 N.E.2d 153, 154
(Ind. Ct. App. 1997). If good cause is shown for granting the motion, denial of
a continuance will be deemed to be an abuse of discretion. Id. No abuse of
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discretion will be found when the moving party has not shown that he was
prejudiced by the denial. Litherland, 796 N.E.2d at 1240.
[54] The record reveals that delays were attributable to Father, who failed to appear
at the December 8, 2016 hearing, and GAL Artusi testified regarding his
difficulties in receiving responses from Father. Indeed, in March 2017, the
court ordered Father to meet with GAL Artusi. As pointed out by the trial
court, Mother filed her initial petition on January 20, 2016, and Father did not
file his subpoena duces tecum for her college and clinical schedule until March
24, 2017. At the April 20, 2017 hearing, the court stated that Father could have
“brought a lot of those matters to the Court long before and . . . chose not to.”
Transcript Volume II at 145.
[55] To the extent Father asserted in his May 8, 2017 motion for continuance, filed a
day before the hearing, that he requested a copy of the “investigation file and
pertaining information” pursuant to Ind. Code § 31-17-2-12(c)(1)(2)(3) on
March 23, 2017, and that he finally received the information requested on May
5, 2017, Appellant’s Appendix Volume V at 50, we observe that Ind. Code § 31-
17-2-12(c) provides:
The court shall mail the investigator’s report to counsel and to
any party not represented by counsel at least ten (10) days before
the hearing. The investigator shall make the following available
to counsel and to any party not represented by counsel:
(1) The investigator’s file of underlying data and reports.
(2) Complete texts of diagnostic reports made to the
investigator under subsection (b).
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(3) The names and addresses of all persons whom the
investigator has consulted.
[56] GAL Artusi’s report dated January 6, 2017, includes a certificate of service
indicating that a copy of the report was served by mail on Father. Father does
not allege that he did not receive this report. Indeed, he filed a motion for
enlargement of time to respond to the report. GAL Artusi’s supplemental
report dated April 25, 2017, contained a certificate of service asserting that a
copy of the report was served by mail on Father. Again, father does not allege
he did not receive this report. To the extent he did not receive the
“investigation file and pertaining information” until May 5, 2017, Father does
not develop a cogent argument that any information from the “investigation file
and pertaining information” was not already in GAL Artusi’s reports or explain
how he was prejudiced. Under the circumstances, we conclude that the trial
court did not abuse its discretion in denying Father’s motion for a continuance.
Conclusion
[57] For the foregoing reasons, we affirm the trial court’s order.
[58] Affirmed.
Bailey, J., and Crone, J., concur.
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