Tara Jean Davies v. Guy Albert P Davies (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 28 2017, 9:34 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
John L. Kellerman II
Kellerman Law Office
Batesville, IN 47006
IN THE
COURT OF APPEALS OF INDIANA
Tara Jean Davies, March 28, 2017
Appellant-Petitioner, Court of Appeals Case No.
24A05-1508-DR-1103
v. Appeal from the Franklin Circuit
Court
Guy Albert Pierce Davies, The Honorable J. Steven Cox,
Appellee-Respondent. Judge
Trial Court Cause No.
24C01-1305-DR-401
Najam, Judge.
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Statement of the Case
[1] Tara Jean Davies (“Mother”) appeals the dissolution court’s final decree, which
ended her marriage to Guy Albert Pierce Davies (“Father”). Mother presents
the following issues for our review:
1. Whether the dissolution court abused its discretion when it
calculated Father’s child support obligation.
2. Whether the dissolution court abused its discretion when it
did not order Father’s child support obligation to be
retroactive.
3. Whether the dissolution court abused its discretion when it
did not order Father to pay child support by way of an
income withholding order.
4. Whether the dissolution court abused its discretion when it
did not order Father to pay a portion of one of their
children’s college expenses.
5. Whether the dissolution court erred when it made no
provision for either parent to claim the parties’ children as
dependents on their tax returns.
6. Whether the dissolution court erred when it made no
provision for the payment of the children’s uninsured
medical expenses.
[2] We affirm and remand with instructions.
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Facts and Procedural History
[3] On February 1, 2002, Father and Mother were married, and they had three
children together, namely, D.D., G.D., and T.D. On May 13, 2013, Mother
filed a petition for dissolution of the marriage. On June 11, the dissolution
court issued a provisional order stating that the parties had agreed that they
“shall not dissipate any assets or create new debt and shall continue to maintain
their current debt as exercised for the previous two (2) years” and that Mother
“is awarded temporary custody of the minor children herein, and no support is
ordered.” Appellant’s App. at 36.
[4] The dissolution court held a final hearing on the dissolution petition over the
course of three days: November 26, 2013; July 1, 2014; and September 2, 2014.
During those hearings, Father testified that: he was employed “drilling fuel oil
and natural gas” in Vietnam and comes home for periods of time ranging from
twenty-two to twenty-six days at a time; he has five children—three with
Mother and two from a previous marriage; he pays $500 per month in child
support for the two children from a previous marriage; and he pays “every bill
that [he is] expected to pay.” Tr. at 5, 191. Mother testified that Father had not
complied with the provisional order to “pay all of our bills exactly like they had
been [paid] in the past” and, as a result, Mother had to use approximately
$11,000 out of a savings account to pay the family’s bills. Id. at 54.
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[5] On April 27, 2015, the dissolution court entered the final decree on child
custody, child support, and parenting time,1 which stated as follows:
That [Mother] shall have sole custody of the minor children
herein, [D.D., G.D., and T.D.] [Father] shall be entitled to
visitation at all times when he shall be on break from his
employment schedule. Should his break at home[,] according to
his employment schedule[,] be longer than two consecutive
weeks, support shall be half of the regular weekly amount for the
remainder of that break. During this time period, [Mother] shall
have liberal communication access with the children herein.
Additionally, should [Father’s] break from his employment
schedule last more than two consecutive weeks, [Mother] shall
have alternate weekends and mid-week visitation with the minor
children.
The Court further finds that [Father] shall pay support in the
amount of Four Hundred and Forty-two Dollars ($442.00)
weekly commencing Friday, April 24, 2015[,] payable through
the office of the Franklin County Circuit Court Clerk.
Appellant’s App. at 34-35. Mother filed a motion to correct error, which was
deemed denied. Mother appealed.
[6] On February 9, 2017,2 pursuant to Indiana Appellate Rule 37(B), this court
suspended consideration of the appeal and remanded to the trial court to (1)
attach to the order a completed child support worksheet, signed by both parties,
1
The dissolution court noted that it had “ratified” the parties’ agreed entries regarding the division of the
marital assets. Appellant’s App. at 34.
2
This court had granted Mother several extensions of time to file her brief on appeal due to the parties’
attempts to settle the issues on appeal. Mother finally filed her appellant’s brief on October 13, 2016.
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and/or (2) issue written findings articulating the factual circumstances
supporting the child support order. On February 10, the trial court filed, in
open court, its Final Order on Child Support, including the following findings
and conclusions:
1. On July, 1, 2014[,] the Petitioner herein submitted her
child support worksheet as Exhibit #2 in the amount of $442.00
per week, and;
2. Counsel for Respondent had no objection to Petitioner’s
Exhibit #2, and;
3. The Court heard extensive evidence relating to the work
schedules of the parties, earning capacities, relationships, plans
for post-secondary education and visitation practices with their
respective children during the remainder of the hearing of July 1,
2014, as well as the balance of the hearing which was held on
September 2, 2014, and;
4. The Court found that there were three children born to the
marriage, and;
5. The oldest child was involved in the transition to post-
secondary education, and;
6. The two younger children still visited extensively with the
Respondent, and;
7. That the Respondent was then employed for months at a
time on an oil rig in the Indian Ocean which required him to be
absent for extended periods, and;
8. That Respondent, when he was local, opted to visit his
children at a hotel or resort and incurred those expenses rather
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than maintain a more permanent residence and the associated
costs, and;
9. That the Petitioner, during the balance of the Final
Hearing offered another child support worksheet marked as
Exhibit #11, on September 2, 2014[,] in the amount of Five
Hundred Thirty-nine Dollars ($539.00), which worksheet gave no
credit for overnights, and;
10. The Court found that there was a dispute between the
parties as to which income amount should be utilized for the
calculation of child support, and;
11. The Court first considered Respondent’s request for joint
custody but opted not to grant the request since the requirement
to keep the Respondent informed as to medical, educational and
religious decisions would work an undue hardship on the
Petitioner given the difficulty in communicating with the
Respondent when he was out of the country, and would,
therefore, not meet the best interest standard of the children, and;
12. The Court next considered the worksheets submitted as
Petitioner’s Exhibit #2 and #11 respectively and found that given
the extraordinary nature of the visitations which could not be
reconciled under the Indiana Parenting Time Guidelines given
the nature of Respondent’s work schedule and cost of
maintaining a permanent residence even when out of the
country, and given the fact that the Respondent, in fact, visited
with the children full time when he was in the country, the Court
concluded that it was inappropriate to give Respondent no credit
for parenting time as indicated on Petitioner’s Exhibit #2, and;
13. The Court next considered Respondent’s testimony
relating to the expense he incurred while having the children
when he was in country and how “make-up” time should be
applied under the Indiana Parenting Time Guidelines, and;
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14. The Court next considered the effects of the cost of
visitations when the Respondent was in country as those costs
related to Transferred Expenses up to 35%, Duplicated Fixed
Expenses up to 50% and Controlled Expenses when exercising
his ability to visit and when the applicable, assumed percentages
of these expenses were applied to the work sheet, depending on
the range applied by the Court, the Court found that the
percentages could result in a support amount which was lower
than the lowest amount sought by Petitioner of $442.00 per week
as stated in her original worksheet which she submitted on July
1, 2014, and;
15. The Court found that it was in the children’s best interest
that they be given as much time with Respondent as his work
schedule would allow even though it found that it was not in
their best interest that custody be shared under these facts, and;
16. That given the extraordinary facts before the Court as to
the parties[’] ability to support and their ability to continue the
development of meaningful relationships with their children, the
Court found that it was necessary to deviate from both the
Indiana Parenting Time Guidelines and The Indiana Child
Support Guidelines, and;
17. That[,] based on Respondent’s skill set[,] his only ability to
earn at his current rate of pay was to continue to work out of the
country which necessarily perpetuated his intermittent absence
from his children.
18. Based on the foregoing analysis, the Court concluded that
the better measure of support and that which was best reflective
of the unusual facts before the Court was the amount reflected in
Petitioner’s Exhibit #2 since it was admitted without objection
and was higher than the amount that could potentially have been
reached by the Court if it had applied the percentages relating to
Transferred and Duplicated Fixed Expenses to the worksheet
amount represented in Petitioner’s Exhibit #11. While the Court
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was mindful that the parenting time was not shared under a joint
custody order, that arrangement was not ordered for practical
reasons. Nonetheless, the Court’s intention was that the parties
share the physical custody with each other as equally as their
respective schedules would allow. The Court therefore ordered
that the support obligation would not terminate when
Respondent exercised visitation but would, rather, be decreased
by half when he physically had the children which was done in
recognition of the custodial parent’s Controlled Expenses.
The foregoing analysis and discussion was the basis for the
Court’s deviation from the Indiana Support Guidelines as well as
the Indiana Parenting Time Guidelines in the above-referenced
Cause. Petitioner’s Exhibits #2 and #11 are before the Indiana
Court of Appeals as part of the Record in the list of Exhibits in
Cause Number 24A05-1508-DR-1103. Pursuant to the Order
dated February 9, 2017, from the Indiana Court of Appeals in
Cause Number 24A05-1508-DR-1103, the Court incorporates the
above analysis as its reason for originally deviating from the
Indiana Support Guidelines and the Indiana Parenting Time
Guideline and incorporates the same as its rationale for the
current Final Order on Child Support.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that support in this matter shall be and is hereby set
in the amount of Four Hundred Forty-two Dollars ($442.00) per
week commencing the 24th day of April, 2015.
February 10, 2017, Order at 1-3. Mother timely filed a supplemental
Appellant’s Brief to address the trial court’s findings and conclusions. 3
3
Father was given the option to file a brief in response to the dissolution court’s new order and Mother’s
brief, but he chose not to do so.
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Discussion and Decision
Standard of Review
[7] Initially, we note that Father has not filed an appellee’s brief. Accordingly, we
will reverse the trial court’s judgment if the appellant presents a case of prima
facie error. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010). Prima
facie error is error at first sight, on first appearance, or on the face of it. Id.
Where an appellant does not meet this burden, we will affirm. Id.
[8] The trial court here entered findings and conclusions sua sponte to accompany
its dissolution decree. Accordingly, the specific factual findings control only the
issues that they cover, while a general judgment standard applies to issues upon
which there are no findings. Fetters v. Fetters, 26 N.E.3d 1016, 1019 (Ind. Ct.
App. 2015), trans. denied. Not every finding needs to 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 upon any legal theory
supported by the evidence introduced at trial. Id. at 1019-20. Sua sponte
findings control as to the issues upon which the court has found, but do not
otherwise affect our general judgment standard of review, and we may look
both to other findings and beyond the findings to the evidence of record to
determine if the result is against the facts and circumstances before the court.
Id. at 1020.
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Issue One: Child Support
[9] Mother first contends that the dissolution court abused its discretion when it
calculated Father’s child support obligation. A trial court’s calculation of child
support is presumptively valid. Young v. Young, 891 N.E.2d 1045, 1047 (Ind.
2008). We will reverse a trial court’s decision in child support matters only if it
is clearly erroneous or contrary to law. Id. (citing Ind. Trial Rule 52(A)). A
decision is clearly erroneous if it is clearly against the logic and effect of the
facts and circumstances that were before the trial court. Id.
[10] Mother maintains that there was “no need to deviate from the [Child Support]
Guidelines” to achieve figures comparable to those arrived at by the Court
selecting the amount that seemed “‘the better measure of support.’”
Appellant’s Br. at 7 (quoting February 10 Order). And Mother avers that
“[n]othing in [the dissolution court’s] analysis directly addresses the factors
contained in [Indiana Code Section] 31-16-6-1[,]” which provides in relevant
part as follows:
(a) In an action for dissolution of marriage . . . , 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[.]
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[11] We do not address the merits of Mother’s contentions on this issue. In
calculating Father’s child support obligation, the dissolution court adopted the
amount indicated in the child support worksheet Mother submitted, without
objection, as Exhibit 2 at the final hearing. As such, any error was invited, and
Mother cannot now complain. Balicki v. Balicki, 837 N.E.2d 532, 541 (Ind. Ct.
App. 2005) (reiterating doctrine of invited error is grounded in estoppel and
precludes a party from taking advantage of an error that she commits, invites,
or which is the natural consequence of her own neglect or misconduct), trans.
denied.; see also Laux v. Ferry, 34 N.E.3d 690, 695 (Ind. Ct. App. 2015) (holding
father invited alleged error in calculating child support where dissolution court
based amount on father’s child support worksheet). 4
Issue Two: Child Support Retroactivity
[12] Mother contends that the dissolution court abused its discretion when it did not
make the child support order retroactive. Mother maintains that Father did not
comply with the dissolution court’s provisional order that he continue to pay
the family’s bills as he had done prior to the parties’ separation. Accordingly,
Mother asserts that she had to pay more than her share of the bills while the
4
For the first time in her supplemental brief, Mother describes as “problematic” the provision for a reduction
in Father’s child support obligation when Father exercises parenting time for longer than two consecutive
weeks. Appellant’s Supp. Br. at 7-8. Because that provision was included in the dissolution court’s April 27,
2015, child support order and was not amended in the court’s February 10, 2017, order, Mother could have
raised her objection to the provision in her original Appellant’s Brief filed October 13, 2016. Having failed to
do so, we hold that Mother has waived that issue for our review.
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dissolution was pending, and she sought retroactive child support from Father
to make up the difference.
[13] It is well established that “the trial court has the discretionary power to make a
modification for child support relate back to the date the petition to modify is
filed or any date thereafter chosen by the trial court.” Laux, 34 N.E.3d at 695
(quoting Hatmaker v. Hatmaker, 998 N.E.2d 758, 763 (Ind. Ct. App. 2013), trans.
denied). Here, contrary to Mother’s assertion, Father testified that he paid
“every bill that [he was] expected to pay.” Tr. at 191. The dissolution court
was entitled to credit that testimony over Mother’s testimony. In any event,
when they separated, the parties agreed that Father would not pay provisional
child support. Mother has not demonstrated that the dissolution court abused
its discretion when it did not order retroactive child support.
Issue Three: Income Withholding Order
[14] Mother contends that the dissolution court erred when it did not order Father’s
child support obligation to be paid by means of an income withholding order.
Indiana Code Section 31-16-15-0.5 (2017) provides in relevant part as follows:
(a) Except as provided in subsection (c), in any proceeding in
which a court has ordered, modified, or enforced periodic
payments of child support, the court shall include a provision
ordering that child support payments be immediately withheld
from the income of the obligor in an amount necessary to comply
with the support order, including amounts for current child
support obligations, child support arrearage, medical support,
interest, and fees.
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[15] We agree with Mother that the record does not indicate that a stay of an
income withholding order under subsection (c) of the statute applies here. The
dissolution court erred when it did not order that Father fulfill his child support
obligation by way of an income withholding order. We remand with
instructions to the dissolution court to issue such an order.
Issue Four: College Expenses
[16] Mother contends that the dissolution court abused its discretion when it did not
order Father to pay for college expenses for D.D. As our supreme court has
explained,
Indiana Code Section 31-16-6-2 gives guidance regarding
contribution toward post-secondary educational expenses, listing
certain factors to take into account, such as “the child’s aptitude
and ability,” “the child’s reasonable ability to contribute to
educational expenses,” and “the ability of each parent to meet
these expenses,” among other things.[] Furthermore, Child
Support Guideline 8(b) lists expenses that may be included
within a post-secondary educational expense order, such as
tuition, books, lab fees, supplies, student activity fees, room and
board under certain circumstances, transportation, car insurance,
clothing, entertainment, and incidental expenses. This guideline
also explicitly states that “[i]t is discretionary with the court to
award post-secondary educational expenses and in what
amount.” Child Supp. G. 8(b). It continues that the court
should “weigh the ability of each parent to contribute to payment
of the expense, as well as the ability of the student to pay a
portion of the expense.” Id.
Hirsch v. Oliver, 970 N.E.2d 651, 660-61 (Ind. 2012).
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[17] In support of her contention on this issue, Mother cites the following evidence:
In this case, the parties’ oldest son was 16 years old when the
Dissolution was filed and graduated high school in 2014 and
began attending college that fall. (Tr. [at] 199). Mother hoped
that his education would be free under the VA ([t]r. [at] 39) but
father confirmed that Mother had incurred a loan for the son’s
college education. (Tr. [at] 199). Unfortunately, no evidence was
presented as to the amount of the expenses. This issue was raised in
the Motion to Correct Error.
Appellant’s Br. at 15 (emphasis added). Because Mother did not present any
evidence regarding the amount of expenses she had incurred for D.D.’s college
loans and the like, any error was invited and Mother cannot now complain.
Balicki, 837 N.E.2d at 541. In any event, Mother has not demonstrated that the
dissolution court abused its discretion when it did not order Father to share in
the college expenses.
Issue Five: Tax Returns
[18] Mother contends that the dissolution court erred when it made no provision for
the parties to claim their children as dependents on their tax returns. Mother is
correct that Indiana Code Section 31-16-6-1.5 provides that “a court shall
specify in a child support order which parent of a child may claim the child as a
dependent for purposes of federal and state taxes.” We remand to the
dissolution court to amend its child support order to comply with this statute.
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Issue Six: Uninsured Medical Expenses
[19] Finally, Mother contends that the dissolution court erred when it did not
provide for the allocation of the children’s uninsured medical expenses between
the parties. Mother maintains that those expenses “should be allocated
according to the Child Support Guidelines.” Appellant’s Br. at 14. But, while
Mother states that Child Support Guideline 7 “requires that a calculation of
Extraordinary health expenses be made[,]” she does not set out in her brief
what the calculation is or what it would require Father to pay under the facts
and circumstances here.5 Id. Neither does Mother direct us to any case law in
support of her contention on this issue. Further, Mother refers to “proceedings
[that occurred] after the initiation of this appeal” which “resulted in an order
requiring both parents to maintain health insurance on the children, if available
at reasonable cost[.]”6 Id.
[20] Mother’s argument on this issue is difficult to discern. Regardless, Child
Support Guideline 7 provides in relevant part that extraordinary health care
expenses “are those uninsured expenses which are in excess of” 6% of the child
support amount, which is designated to pay for health care. And “[c]alculation
5
In her motion to correct error, Mother asked the dissolution court to allocate the children’s uninsured
medical expenses between the parties “according to the attached CSOW.” Appellant’s App. at 39. But
Mother has not included any attachments to the motion to correct error in her appendix on appeal.
6
We note that this court has had jurisdiction over this matter since the notice of completion of the Clerk’s
record was filed on September 11, 2015. Our supreme court has recognized that where the subject of the
appeal is “‘entirely independent of the issues to be tried[,]’” subsequent trial court action does not interfere
with the jurisdiction of the appellate court. Hickman v. Irwin Union Bank (In re Hickman), 811 N.E.2d 843, 848
(Ind. Ct. App. 2004) (quoting Bradley v. State, 649 N.E.2d 100, 106 (Ind. 1995)), trans. denied.
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of the apportionment of the health care expense obligation is a matter separate
from the determination of the weekly child support obligation.” Id. We
remand to the dissolution court to determine an appropriate amount for Father
to pay with respect to the children’s uninsured medical expenses.
[21] In sum, we affirm the dissolution court, but remand with instructions that the
court: issue an income withholding order; specify which parent may claim
which child as a dependent for income tax purposes; and assess Father’s
responsibility for the children’s uninsured medical expenses.
[22] Affirmed and remanded with instructions.
Bailey, J., and May, J., concur.
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