In Re: The Marriage of: Meleeka Clary-Ghosh v. Michael Ghosh

Feb 09 2015, 9:53 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Ryan H. Cassman
Indianapolis, Indiana Cathy M. Brownson
Coots Henke & Wheeler, P.C.
Carmel, Indiana
Michael Ghosh
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Marriage of: February 9, 2015
Meleeka Clary-Ghosh, Court of Appeals Cause No.
29A04-1406-DR-275
Appellant-Defendant,
Appeal from the Hamilton Superior
v. Court
Cause No. 29D03-0908-DR-2586
The Honorable William J. Hughes,
Michael Ghosh, Judge
Appellee-Plaintiff
Barnes, Judge.
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Case Summary
[1] Meleeka Clary-Ghosh appeals the trial court’s modification of parenting time
and child support, the award of attorney fees to her ex-husband, Michael
Ghosh, as a sanction for contempt, and the denial of her request for the
appointment of a parenting time coordinator. We affirm.
Issues
[2] Meleeka raises four issues, which we restate as:
I. whether the trial court properly modified her
parenting time;
II. whether the trial court properly imputed
income to her;
III. whether the trial court properly found her
incontempt and ordered her to pay a portion of
Michael’s attorney fees; and
IV. whether the trial court properly denied her
request for a parenting time coordinator.
Facts
[3] Meleeka and Michael were married and had a son, M.G. The marriage was
dissolved and, in 2010, Michael was awarded legal and physical custody of then
two-year-old M.G. Meleeka was awarded parenting time overnight every
Wednesday at 6:00 p.m. until Thursday at 10:00 a.m. and alternating
weekends, beginning at 6:00 p.m. on Friday and continuing until Monday at
10:00 a.m. Meleeka, a full-time doctoral student, was not ordered to pay any
child support.
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[4] Meleeka and Michael’s relationship was acrimonious and resulted in the filing
of numerous motions and petitions following the dissolution, including several
contempt petitions by both parties, a request for the appointment of a parenting
time coordinator and a motion to modify custody by Meleeka, and motions to
modify parenting time and child support by Michael.
[5] After several hearings, the trial court found Michael in contempt for failing to
forward school information about M.G. to Meleeka. As a sanction, the trial
court issued a $100 fine, which was suspended, and ordered him to pay $500 of
Meleeka’s attorney fees. The trial court also found that Meleeka was in
contempt for her failure to pay school fees in the amount of $7,323.69. As an
additional sanction for Meleeka’s contempt and as an exercise of its authority to
apportion attorney fees in a dissolution case, the trial court awarded Michael
$8,000 in attorney fees.1 The trial court then issued an order denying Meleeka’s
request for a parenting time coordinator. Finally, the trial court granted
Michael’s motion to modify child support and his motion to modify parenting
time. In doing so the trial court imputed annual income of $40,000.00 to
Meleeka and modified her parenting time to one three-hour mid-week visitation
1
The trial court also ordered Meleeka to pay $1,000 of Michael’s attorney fees as a sanction for her refusal
to provide financial discovery and her failure to comply with Local Rules. Although she mentions the failure
to provide financial information in her issue statement, she does not develop any argument supported by
authority on this point. This issue is waived. See Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012)
(“A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record.”); Ind. Appellate Rule 46(A)(8)(a).
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and alternating weekend visitation from 5:00 p.m. Friday until 6:00 p.m.
Sunday. Meleeka now appeals.
Analysis
[6] It appears that the trial court entered sua sponte findings. In such a situation,
the specific factual findings control only the issues that they cover, and a
general judgment standard applies to issues upon which there are no findings.
Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013), aff’d on reh’g. “It is not
necessary that each and every finding be correct, and even if one or more
findings are clearly erroneous, we may affirm the judgment if it is supported by
other findings or is otherwise supported by the record.” Id. We may affirm a
general judgment with sua sponte findings on any legal theory supported by the
evidence. Id. In reviewing the accuracy of findings, we first consider whether
the evidence supports them. Id. We then consider whether the findings support
the judgment. Id. “We will disregard a finding only if it is clearly erroneous,
which means the record contains no facts to support it either directly or by
inference.” Id.[7] A judgment also is clearly erroneous if it relies on an incorrect legal standard,
and we will not defer to a trial court’s legal conclusions. Id. at 998-99. We give
due regard to the trial court’s ability to assess the credibility of witnesses and
will not reweigh the evidence, and we must consider only the evidence most
favorable to the judgment along with all reasonable inferences drawn in favor of
the judgment. Id. at 999. Additionally, we “‘give considerable deference to the
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findings of the trial court in family law matters . . . .’” Id. (quoting MacLafferty
v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)). This deference is a reflection
that the trial court is in the best position to judge the facts, ascertain family
dynamics, and judge witness credibility. Id. “‘But to the extent a ruling is
based on an error of law or is not supported by the evidence, it is reversible, and
the trial court has no discretion to reach the wrong result.’” Id. (quoting
MacLafferty, 829 N.E.2d at 941).
I. Modification of Parenting Time
[8] Meleeka argues that the trial court improperly reduced her parenting time. On
this issue, the trial court found:
15. The Court’s orders regarding parenting time are no longer in
the best interest of the minor child and [sic] evidenced by the ongoing
litigation occurring between these parties concerning even the most
simple issues for visitation. Because more structure and definitive
times and dates are required The Court’s Order of January 4, 2011 is
hereby modified as follows . . . .
[9] Appellant’s Amended App. p. 14.
[10] Indiana has long recognized that the right of parents to visit their children is a
precious privilege and that a non-custodial parent is generally entitled to
reasonable visitation rights. Perkinson v. Perkinson, 989 N.E.2d 758, 762 (Ind.
2013). Indiana Code Section 31-17-4-2 provides:
The court may modify an order granting or denying parenting time
rights whenever modification would serve the best interests of the
child. However, the court shall not restrict a parent’s parenting time
rights unless the court finds that the parenting time might endanger the
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child’s physical health or significantly impair the child’s emotional
development.
[11] Meleeka contends that the trial court reduced her parenting time without
finding that parenting time might endanger M.G.’s physical health or
significantly impair his emotional development. Meleeka, however, provides
no authority for the proposition any reduction of parenting time is a restriction
of parenting time as anticipated in Indiana Code Section 31-17-4-2. Instead she
cites to a dictionary definition of “restrict” and a 1977 case involving a prior
version of the statute in which we concluded visitation was improperly
restricted without the necessary findings when it was reduced from one
weekend a month, two hours per week, and alternating holidays and birthdays
to one Sunday a month from 8:00 a.m. to 8:00 p.m. Milligan v. Milligan, 174
Ind. App. 40, 43, 365 N.E.2d 1244, 1246 (1977).
[12] Notably, Milligan did not involve the Parenting Time Guidelines, which were
adopted in 2001, and involved a substantial restriction to a parent’s visitation.
Here, however, Meleeka had previously been awarded parenting time in excess
of the specific parenting time provisions in the Parenting Time Guidelines. See
Ind. Parenting Time G. II(B)(1) (2001).2 In an attempt to minimize conflict
2
Although there was some dispute regarding the applicability of the 2013 amendments to the Parenting
Time Guidelines during the various hearings, the 2013 amendments did not substantively modify this
Guideline. Both versions call for regular parenting time on alternating weekends from Friday at 6:00 p.m.
until Sunday at 6:00 p.m., one evening per week, preferably midweek for a period of up to four hours but not
later than 9:00 p.m., and on all scheduled holidays. Cf. Parenting Time G. II(B)(1) (2001) to Parenting Time
G. II(D)(1) (2013).
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between the parties, the trial court eliminated overnight visitation on school
nights. The result is a parenting time award that is more consistent with the
specific parenting time provisions of the Parenting Time Guidelines. The
commentary to the Parenting Time Guidelines explains that the Guidelines
“represent the minimum time a non-custodial parent should spend with a child
. . . .” Parenting Time G. Preamble cmt. 2.3 Thus, Meleeka’s parenting time
was not reduced below the minimum time described in the Parenting Time
Guidelines, and we are not convinced that the reduction amounted to a
restriction of parenting time for purposes of Indiana Code Section 31-17-4-2.
[13] Because the parenting time modifications were consistent with the Parenting
Time Guidelines, we do not believe an endangerment or impairment finding
was necessary. Instead, the trial court was permitted modify Meleeka’s
parenting time if it served M.G.’s best interests. The evidence showed that
Meleeka’s overnight parenting time on school nights was a source of
disagreement for the parties. Thus, the elimination of these overnights was
intended to reduce conflict, which was in M.G.’s best interests. Meleeka has
not established that the trial court abused its discretion in modifying her
parenting time.4
3
Similarly, the 2013 amendment provides that the “Guidelines represent the minimum time a non-custodial
parent should spend with a child when the parties are unable to reach their own agreement.” Parenting Time
G. Preamble (B) cmt 2 (2013).
4
In her reply brief, Meleeka summarily contends that the trial court failed to find a change of circumstances
necessary to modify visitation. Because a party may not raise an issue for the first time in a reply brief, this
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II. Modification of Child Support
[14] Meleeka contends that the trial court erred in imputing income to her and
modifying her child support obligation. A trial court enjoys wide discretion in
imputing income to ensure that the child support obligor does not evade his or
her support obligation. Sexton v. Sedlak, 946 N.E.2d 1177, 1188 (Ind. Ct. App.
2011), trans. denied. “Trial courts may impute income to a parent for purposes
of calculating child support upon determining that he or she is voluntarily
unemployed or underemployed.” Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind.
Ct. App. 2012).
[15] On this issue, the trial court made extensive findings:
4. Mother, is not employed. She has voluntarily left the
workforce to pursue and [sic] doctoral degree and contends she is a full
time student. However, the evidence presented established that
Mother has access to significant income and is able to pay child
support. The evidence also establishes that Mother is voluntarily
under employed and engages in behaviors apparently designed to
display her as indigent while living a very nice lifestyle.
*****
6. Mother has not filed a financial declaration. Mother has
apparent unfettered access to a business account for an MCM
Fashions, LLC, (an account she opened as registered agent for the
issue is waived. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (“The law is well
settled that grounds for error may only be framed in an appellant's initial brief and if addressed for the first
time in the reply brief, they are waived.”).
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LLC). She claims her only sources of income are student loans,
personal loans and gifts from her brother and other persons, and
formerly, contributions from her mother’s benefits. Regular and
continuing payments made by family member(s) that reduce Mother’s
costs for rent, utilities, or groceries, may be the basis for imputing
income. It is clear by a review of the MCM account records that
Mother uses funds in this account to pay her living and personal
expenses. The Court’s order of May 12, 2014 found that Mother has
had access to approximately $75,000.00 over the last two years.
7. Additionally, Mother has traveled out-of-town on at least 36
occasions from October 2011 through June 2014 to the following
locations: Boston, Miami, Chicago, Orlando, Ohio, Minneapolis,
Niagara Falls, North Carolina, Houston, Palm Springs, Bahamas,
Jamaica, New York, San Diego, and Oregon. Some of these trips are
related to her ongoing doctoral education and others are not.
8. Mother also testified that she previously owned three vehicles
(2 Mercedes and 1 Minivan), but gave them to her brother. However
even though she “gave” these items to her brother, she maintains
possession of the vehicles, insures and provides for their maintenance.
Mother’s claim that these vehicles are not titled to her is credible, but
the Court finds the transfer of title to be an unsuccessful attempt to
mask the true ownership of these vehicles from consideration herein.
This is but one example of the type of financial obfuscation Mother
has engaged in to attempt to prevent this Court from making an
informed child support determination.
9. The [Indiana Child Support Guidelines] gives the trial court
wide discretion to impute income to a parent when it is convinced the
parent’s unemployment or underemployment has been contrived for
the sole purpose of evading support obligations. Mother’s net worth
and expenditures are also factors in determining the ability to pay child
support. Mother has chosen to not seek additional work despite
having both a Bachelor’s Degree and a Master’s Degree. Based on
Mother’s work history, education, the amount she receives from
family and friends, having her mother as a tenant, Mother’s bank
records showing amounts received by her business entity and other
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evidence at hearing regarding amounts Mother has spent on her own
living and personal expenses, Mother’s income for support purposes is
at least $40,000.00, or $769.00 per week. Mother has previously
demonstrated the ability to earn this amount of income while residing
in central Indiana with the educational accomplishments she has
already obtained.
10. Mother has two prior born children in her custody for which
she receives child support. Mother also has an obligation to provide
support to those children; however, Mother chose not to present any
evidence that would permit the Court to make an appropriate
determination of that obligation under the Indiana Uniform Child
Support Guidelines.
Appellant’s Amended App. pp. 11-13.
[16] Meleeka contends there was no evidence indicating she “was underemployed to
shirk her responsibilities.” Appellant’s Br. p. 12. It was the role of the trial
court, not this court, to assess the credibility of witnesses. Stone, 991 N.E.2d at
999. Our review of the record confirms there was evidence to support the
inference that Meleeka was attempting to avoid her child support obligation.
To the extent Meleeka argues otherwise, she is asking us to reweigh the
evidence, which we cannot do.
[17] As for Meleeka’s contention that the trial court failed to explain which trips
were for educational purposes, the trial court acknowledged that some of the
trips were for educational purposes, and we fail to see how a more specific
allocation of the trips would have altered the outcome. Likewise, Meleeka’s
argument that the trial court should not have considered her student loans or
the child support she received for her other children as a basis for calculating
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child support is not a basis for reversal. There simply is no indication that the
trial court considered Meleeka’s student loans or other child support as a basis
for imputing income to her. Meleeka has not established that the trial court
abused its discretion by imputing income to her.
III. Contempt Findings
[18] Meleeka challenges the trial court’s contempt findings. “A party that is
willfully disobedient to a court’s order may be held in contempt of court.” Witt
v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012). “Whether a person is in
contempt of a court order rests within the trial court’s discretion, and we review
the trial court’s finding for an abuse of discretion.” In re G.B.H., 945 N.E.2d
753, 755 (Ind. Ct. App. 2011). An abuse of discretion occurs only when the
trial court’s decision is against the logic and effect of the facts and
circumstances before the trial court. Id. “We do not reweigh the evidence or
judge the credibility of witnesses, and we will affirm the trial court’s contempt
finding unless review of the record leaves us with a firm and definite belief that
a mistake has been made.” Id.[19] Meleeka first challenges the trial court’s contempt finding based on her failure
to pay M.G.’s school fees. On this issue, the trial court found:
3. [Michael’s] Motion for Contempt and Attorney
Fees filed January 14, 2013 alleges that [Meleeka] has
failed to pay sums of money ordered paid by her for
school fees. [Michael] has met his burden on that issue,
and on the issue that [Meleeka] has had resources
available to her to make some payments but has refused
to make any payments. In the time period at issue,
[Meleeka] has used resources for at least two leisure trips,
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one to Chicago and one to Florida. Contempt must be
used sparingly when sought in a situation such as this for
the failure to pay money. At the time the contempt action
was instituted, [Meleeka] was under an ongoing
obligation to pay 33% of expenses for [M.G.’s] preschool
and was paying nothing. Since the motion was originally
filed in January 2013, [M.G.] is no long attending
preschool. [M.G.] now attends public schools. The sum
due under the Court’s prior orders can now be fixed. The
Court finds [Meleeka] in contempt of Court for failure to
pay school fees and orders judgment entered in favor of
[Michael] and against [Meleeka] in the sum of $7,323.69.
Appellant’s Amended App. pp. 5-6.
[20] Meleeka contends the evidence does not support the finding that she failed to
make payments because it is undisputed that Michael received $1,024.97 from
the bankruptcy trustee in Meleeka’s bankruptcy case for his $18,600.91 claim
against Meleeka’s estate, which claim included the unpaid school fees. There is
no evidence in the record that Meleeka made any additional payments toward
M.G.’s school fees as previously ordered by the trial court. We cannot
conclude that the trial court’s finding on this issue was contrary to the evidence.
[21] Likewise, Meleeka’s suggestion that she had previously paid $1,065.00 toward
school costs is not sufficient to establish that the trial court’s finding was clearly
erroneous because Michael explained that those payments were “already
accounted for on the prior order . . . . So since then I haven’t received any
payments from her.” May 12, 2014 Hr. Tr. p. 142. The trial court did not
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abuse its discretion in finding that Meleeka failed to make school payments
pursuant to its order.5
[22] Meleeka also argues that the trial court erroneously found her to be litigious
and awarded Michael attorney fees when he had also been found in contempt.
At the May 12, 2014 hearing the trial court addressed several outstanding filings
including multiple contempt petitions. In its order, the trial court found
Meleeka had not proven her claim that Michael did not comply with the
holiday parenting time schedule, found Michael in contempt for failing to relay
school information to Meleeka, found Meleeka in contempt for failing to pay
school fees, and found that Michael failed to establish one of his contempt
allegations. Regarding Michael’s contempt, the trial court found his actions
were “mitigated, to large extent, because he believed he had good defensible
reasons for not sharing the incident reports with [Meleeka] because of the
manner she used those reports he did provide to her.” Appellant’s Amended
App. p. 5. Nevertheless, the trial court imposed a suspended fine and ordered
Michael to pay $500 of Meleeka’s attorney fees.
[23] Regarding Meleeka’s claim that Michael had failed to comply with the
Parenting Time Guidelines for Thanksgiving 2012 and Christmas 2012, the trial
5
Michael offered Exhibit 3 to explain his calculation of $7,323.69 in school fees owed by Meleeka pursuant
to an October 3, 2011 order. This exhibit included a credit for the payment by the bankruptcy trustee. Thus,
there is no dispute that the trial court’s contempt order took into account the $1,024.97 credit.
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court found that Meleeka conclusively established Michael had complied with
the Parenting Time Guidelines and that her petition was filed before the
Christmas 2012 visitation. The trial court characterized this contempt petition
as “frivolous, and an effort to exacerbate the litigious nature of these
proceedings.” Id. at 4-5. On the award of attorney fees to Michael, the trial
court found:
5. [Michael] seeks attorney fees in excess of $14,000 and pleads
with the Court to impose those fees because, “This has got to Stop!”
The Court finds that [Meleeka] has pursued a litigious path when
litigation was neither warranted nor necessary . . . . However, the
imposition of attorney fees should be a sanction of last resort because
such a sanction can inappropriately chill the constitutional exercise of
the right of access to the Courts. The Court finds in this instance that
the imposition of such a sanction is appropriate. On the other hand
[Michael] has also been found in contempt for failure to abide by the
Indiana Parenting Time guidelines in providing “notices” from the
school as required by the guidelines. The Court also notes that
[Meleeka] has at times made allegations and taken indefensible legal
positions herein without merit which have unnecessarily increased
attorney fees for [Michael]. The Court also notes that [Meleeka]
claims she has no money to pay these expenses, but has for the past
two years had access to a bank account she opened as a resident agent
through which over $75,000 per year has flowed. In addition,
[Meleeka] clearly enjoys a life style far superior to that which could be
provided by the $4,200 in wages and the less than $9,000 in school
loans she claims as her income for a year. In short, the Court is not
persuaded by [Meleeka’s] claims of poverty. Having considered the
relative merit of each party’s claims the Court finds that as an
additional sanction for her contempt and as an exercise of this Court’s
authority to apportion attorney fees in a dissolution case, [Meleeka]
should pay $8,000 of [Michael’s] fees incurred herein. . . .
Id. at 7.
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[24] “The trial court has inherent authority to award attorney fees for civil
contempt.” Winslow v. Fifer, 969 N.E.2d 1087, 1093 (Ind. Ct. App. 2012), trans.
denied. The fact that the multiple contempt petitions were addressed at a single
hearing and in a single order does not preclude the trial court from awarding
Michael attorney fees. The trial court clearly took into account Michael’s
conduct when it crafted its attorney fee award and in fact, ordered him to pay a
portion of Meleeka’s attorney fees. We cannot conclude the trial court abused
its discretion when it ordered Meleeka to pay a portion of Michael’s attorney
fees.
IV. Parenting Time Coordinator
[25] Meleeka contends the trial court abused its discretion by denying her request to
appoint a parenting time coordinator. Decisions about parenting time which
requires us to give foremost consideration to the best interests of the child and
are reviewed for an abuse of discretion. Perkinson, 989 N.E.2d at 761.
Although Meleeka directs our attention to evidence that she and Michael did
not get along, this fact alone is insufficient to establish that the trial court denied
abused its discretion in denying her request for the appointment of a parenting
time coordinator. It was well within the trial court’s discretion to directly
address the issues raised by the parties in an effort to reduce future litigation
instead of appointing a parenting time coordinator. Meleeka has not
established reversible error on this ground.
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Conclusion
[26] Meleeka has not established that the trial court abused its discretion by
modifying her parenting time, by imputing income to her, by finding her in
contempt and requiring her to pay a portion of Michael’s attorney fees, or by
denying her request to appoint a parenting time coordinator. We affirm.
[27] Affirmed.
May, J., and Pyle, J., concur.
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