Jasmine Snow v. Robert Hicks

Pursuant to Ind.Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral Jan 11 2013, 8:10 am
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
ATTORNEY FOR APPELLANT: tax court
KATHRINE D. JACK
Law Office of Kathrine Jack
Greenfield, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JASMINE SNOW, )
)
Appellant-Petitioner )
)
vs. ) No. 49A04-1205-DR-267
)
ROBERT HICKS, )
)
Appellee-Defendant. )
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David Shaheed, Judge
The Honorable Victoria Ransberger, Magistrate
Cause No. 49D01-1008-DR-037367
January 11, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Jasmine Snow (“Mother”) appeals the trial court’s decisions regarding custody
and child support in post-dissolution proceedings with her former husband, Robert Hicks
(“Father”). She contends that the trial court erred in determining that Father had no
arrearage and declining her request for retroactive support. She also argues that the trial
court erred in calculating support and ordering the parties to share, in alternating years,
the tax exemption for R.H. While we affirm the trial court’s conclusions as to retroactive
support, calculation of support, the alternating tax exemption, and joint legal custody, we
reverse on the arrearage issue. We affirm in part and reverse in part.
Facts and Procedural History
Mother and Father have one child together, R.H.,1 born August 6, 2008, in
California. Mother and Father separated after R.H.’s birth, and Mother relocated to
Indiana. A California court dissolved the parties’ marriage in May 2009. The California
court did not consider any custody, child-support, or parenting-time issues.
In 2010, Father filed a petition to register the California dissolution decree and
establish custody, child support, and parenting time in Marion Superior Court. The
parties were ordered to participate in mediation, and although they reached a tentative
agreement during mediation, Father later rejected it. The court held a preliminary
hearing in July 2011. After hearing evidence about the parties’ finances, the trial court
ordered Father to pay $220 per week in child support.
1
R.H.’s name was an issue at trial. Without Father’s knowledge or consent, Mother changed the
child’s name from R.H., his legal name at birth, to G.L.S. The trial court determined that it was in R.H.’s
best interest that his name be restored to his birth name, and we refer to the child accordingly. The child’s
name is not an issue on appeal.
2
A final hearing was held in April 2012. Mother and Father both appeared at the
hearing and testified about a number of issues. The bulk of the hearing, however, related
to child support and the parties’ ability to communicate with one another.
Mother argued that Father had accumulated two child-support arrearages. The
first arrearage calculated by Mother dated back to the 2010 filing of Father’s petition to
establish custody, support, and parenting time, and continued to the date of the final
hearing. Mother calculated that arrearage to be $6296. However, Mother admitted that
Father had paid her approximately $6400 in support outside the clerk’s record, from June
2011 to September 2011. Appellant’s App. p. 75-79. The second arrearage accounted
only for a short period of time between the preliminary and final hearings, during which
Father failed to pay support until an income-withholding order was executed. Mother
calculated that arrearage to be $2356.2 Although the parties discussed unpaid child
support, neither party requested a child-support modification.
The parties also discussed who would claim the income-tax exemption for R.H.
Mother claimed R.H. in 2011, as she had done in the past. The trial court sanctioned this,
saying, “[I] did give her the exemption, as of the preliminary hearing in July, and so she
had full and every right to claim [R.H.].” Tr. p. 136. Mother claimed she would suffer
financially if Father was allowed to claim R.H. on his taxes.
Both parties also testified about their difficulty communicating with one another
about R.H. Father testified that on many occasions he did not contact Mother even
2
We do not know if any of the $6400 paid to Mother outside the clerk’s record from July-
September 2011 reduced the arrearage that Mother calculated between the preliminary and final hearings.
But we do know that the trial court found a “slight arrearage” during that period, which it did not
calculate.
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though he wanted to see R.H, and that when they discussed Father’s parenting time for
Christmas 2011, “it just got real ugly.” Id. at 27. Mother testified similarly and also
admitted that she failed to inform Father that R.H. had recently switched schools. The
trial court acknowledged these difficulties at the close of the hearing, saying “these two
can’t get along to save their soles [sic], so they’re going to have to do at least
uptoparent.org[,]3 or something.” Id. at 118.
The trial court entered findings and conclusions sua sponte in its judgment three
weeks later. While the order granted Mother primary physical custody of R.H., the court
ordered the parties to share joint legal custody, saying, “The parties have failed to
effectively communicate in the past as to issues pertaining to [R.H.]. However, the
parties now demonstrate [that] they have the ability to communicate regarding [R.H].”
Appellant’s App. p. 52. The court also noted that it had ordered the parties to participate
in a parenting program, which Mother had recently completed. Id. at 52-53.
The court denied Mother’s request for retroactive child support. The court
explained that Father had accumulated a slight arrearage by failing to pay support after it
was established by preliminary order in July 2011. Id. at 53. But the court also explained
that the $220 per-week support obligation had failed to “provide parenting[-]time credit
for Father,” and did not account for transportation costs paid by Father. Id. at 52.
Imputing a weekly income of $290 to Mother—based on full-time, minimum-wage
employment—the court reduced Father’s child-support obligation to $182 per week. Id.
3
“Up to Parents” is a free, online program for divorced or divorcing parents. It is described as
providing “a chance for parents to take an interactive timeout from their conflict . . . in periods of conflict
and stress,” and describes the differences parents may “achieve for themselves and their children when
they put their conflict on hold and focused for a time on their children’s needs.” See
http://www.uptoparents.org/Default.aspx (last visited Dec. 7, 2012).
4
The court concluded that moving forward, the parties should alternate the tax
exemption for R.H. each year, with Mother claiming R.H. in 2011 and Father doing so in
the coming tax year. The court noted that it had considered “the limited income that
Mother presently earns” and “the tax implications” of its decision. Id. at 53. The court
also explained that Father was required to pay ninety-five percent of his child-support
obligation in each alternating year he wished to claim R.H. Id.
In a final paragraph, the court discussed attorney’s fees and explained that due to
income disparity, Father might have been ordered to pay attorney’s fees to Mother. But,
the court said:
Mother comes to the Court with unclean hands, having interfered with
Father’s parenting time and having unlawfully changed the child’s name.
Mother also took the tax exemption for the child despite the pending
proceedings and received a significant refund which more than covered any
purported arrearage and caused Father to incur additional taxes. Each
party shall pay their own attorney fees and costs.
Id. at 54 (emphasis added). Mother now appeals.
Discussion and Decision
Mother challenges the portions of the trial court’s judgment that pertain to child
support and custody. Neither party requested findings and conclusions. Rather, the trial
court entered findings and conclusions sua sponte. When a trial court enters special
findings and conclusions sua sponte, the specific findings and conclusions control only as
to the issues they cover, while a general judgment standard applies to any issue upon
which the court has not found. Estudillo v. Estudillo, 956 N.E.2d 1084, 1089 (Ind. Ct.
App. 2011) (citing Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)), reh’g. denied.
When a trial court has made findings of fact, we apply a two-tier standard of review:
5
whether the evidence supports the findings of fact, and whether the findings of fact
support the conclusions thereon. Id. We will set aside findings only 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. To determine that a finding or
conclusion is clearly erroneous, an appellate court’s review must leave it with the firm
conviction that a mistake has been made. Id. We neither reweigh the evidence nor assess
the credibility of witnesses, but consider only the evidence most favorable to the
judgment. Tew v. Tew, 924 N.E.2d 1262, 1264-65 (Ind. Ct. App. 2010), trans. denied.
We note, however, that Father did not file an appellee’s brief. Under that
circumstance, we do not undertake to develop the appellee’s arguments. Branham v.
Varble, 952 N.E.2d 744, 746 (Ind. 2011). Rather, we will reverse upon an appellant’s
prima facie showing of reversible error. Id.I. Child Support
Mother asserts four arguments that pertain to child support. She contends that the
trial court erred in determining that Father had no arrearage and declining her request for
retroactive support. She also argues that the trial court erred in calculating support and
ordering the parties to share, in alternating years, the tax exemption for R.H.
Decisions regarding child support are within the sound discretion of the trial court.
Hicks v. Smith, 919 N.E.2d 1169, 1171 (Ind. Ct. App. 2010), trans. denied. We reverse a
court’s determination regarding child support only if there has been an abuse of
discretion or the determination is contrary to law. Id. An abuse of discretion occurs if
6
the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Id.A. Arrearage
Mother argues that the trial court explicitly acknowledged Father’s failure to pay
support, yet canceled his arrearage. Indeed, the trial court stated that Father had
accumulated a “slight arrearage” by failing to pay support after it set support at $220 per
week in July 2011. Appellant’s App. p. 52-53. However, the court later concluded that
“no arrearage is found . . . .” Id. at 52.
Mother claims that the only explanation for the cancellation is the court’s
reference to the unclean-hands doctrine. Although the trial court did not explain why it
canceled Father’s arrearage, it did make the following finding when discussing attorney’s
fees: “Mother comes to the Court with unclean hands, having interfered with Father’s
parenting time and having unlawfully changed the child’s name. Mother also took the
tax exemption for the child despite the pending proceedings and received a significant
refund which more than covered any purported arrearage . . . .” Id. at 54. To the extent
the trial court relied on either the unclean-hands doctrine or the fact that Mother claimed
R.H. on her taxes in 2011, this was error.
The unclean-hands doctrine is an equitable tenet that demands one who seeks
equitable relief be free from intentional misconduct in the matter before the court.
Shriner v. Sheehan, 773 N.E.2d 833, 847-48 (Ind. Ct. App. 2002), trans. denied. A party
cannot seek an equitable remedy where a legal remedy exists which is “as practical and
efficient to the ends of justice and its prompt administration as the remedy in equity.”
7
Martin v. Heffelfinger, 744 N.E.2d 555, 559 (Ind. Ct. App. 2001). The doctrine is not
favored and should be applied with reluctance and scrutiny. Villegas v. Silverman, 832
N.E.2d 598, 607 (Ind. Ct. App. 2005), reh’g denied, trans. dismissed. Here, Father
sought to establish child support pursuant to statute and based upon statutory factors.
Mother likewise sought to establish that Father had accumulated an arrearage. Because
the child-support statute allows the parties sufficient legal remedies, the unclean-
hands doctrine does not apply here.
The fact that Mother claimed R.H. on her 2011 taxes is also not a basis for
cancellation of Father’s arrearage. Simply put, Mother was entitled to do this. The trial
court acknowledged this at the final hearing: “[I] did give her the exemption, as of the
preliminary hearing in July, and so she had full and every right to claim [R.H.].” Tr. p.
136. Moreover, the purpose of child support is to ensure the welfare of the child.
Billings v. Odle, 891 N.E.2d 106, 108 (Ind. Ct. App. 2008). There was no basis for the
cancellation of an arrearage expressly acknowledged by the trial court and owed to R.H.
We remand for calculation of Father’s precise arrearage and instruct the court to enter an
order to pay that amount.
B. Retroactive Support
Mother also argues that the trial court erred in denying her request that Father’s
child-support obligation be retroactive to the date he filed his petition to establish
custody, child support, and parenting time. Our courts have held that an initial child-
support order may be retroactive to the filing date of a petition for dissolution. Boone v.
Boone, 924 N.E.2d 649, 652 (Ind. Ct. App. 2010) (citing Bill v. Bill, 155 Ind. App. 65,
8
290 N.E.2d 749 (1972)). At trial, and in her appellate brief, Mother admitted that Father
paid her child support, albeit outside the clerk’s record, before Father’s obligation was
established by the preliminary support order. Appellant’s App. p. 75-79; Appellant’s Br.
p. 5 (“Mother additionally provided copies of certified checks, which Father paid to
Mother outside the clerk’s record . . . .”). From this, the trial court could reasonably
conclude that retroactive support was not warranted. Mother has not shown error here.
C. Calculation of Support
Mother also argues that the trial court erred in calculating Father’s child-support
obligation by failing to attribute to each party their actual weekly gross income, thus
improperly deviating from the Indiana Child Support Guidelines. Specifically, Mother
argues that the trial court assigned Father $1390 in weekly gross income, when in fact his
weekly gross income is $1455. Mother also claims that the trial court improperly
imputed $290 in weekly income to her, when her actual income is less than that amount.
Mother correctly states that a trial court may deviate from the Guidelines only if it
provides written findings to justify the deviation. Clark v. Madden, 725 N.E.2d 100, 107
(Ind. Ct. App. 2000).
It is not entirely clear what income values the trial court truly intended to use for
Father. On the child-support worksheet it attached to its order, it attributes two different
incomes to him. On Line 1 of the worksheet, the court says that Father’s weekly gross
income is $1390. See Appellant’s App. p. 58. Two pages later in the worksheet, the
court lists Father’s weekly gross income as $1445, the same amount found by the court in
the preliminary support order. See id. at 60. But the amount ordered by the court appears
9
to be based upon the $1390 weekly income, and the difference between that amount and
the higher income Mother advocates for is minimal: by our calculations, using the higher
amount would require Father to pay approximately one dollar and thirty cents more in
weekly support. We cannot say that the trial court erred in this regard.
And as to Mother’s income, the trial court imputed $290 per week to her to reflect
minimum-wage employment.4 Id. at 52. By her own account, though she was employed,
Mother worked “not that many hours”—between twelve and twenty—and at the time of
the final hearing was enrolled in one college course and attended class one evening per
week. Tr. p. 103. We cannot say that attributing a minimum-wage income to Mother
based on full-time employment was inappropriate.
D. Alternating Tax Exemption
Mother also claims that the trial court erred by ordering her to release the tax
exemption for R.H. to Father in alternating years. With respect to dependent tax
exemptions, this Court has stated:
We note at the outset that 26 U.S.C. § 152(e) (2000) automatically grants a
dependency exemption to a custodial parent of a minor child but permits an
exception where the custodial parent executes a written waiver of the
exemption for a particular tax year. Moreover, we have previously held
that a trial court under certain circumstances may order the custodial parent
to sign a waiver of the dependency exemption. Furthermore, the
Commentary to the Indiana Child Support Guidelines states that the
Guidelines were developed without taking into consideration the award of
the dependency exemption. Instead, courts are instructed to review each
case on an individual basis.
4
There is also a discrepancy in the child-support worksheet as to Mother’s income. On the first
page of the worksheet, the court lists Mother’s income as $290 per week. On the third page of the
worksheet, it lists her income as $206 per week, an amount found in previous support worksheets. But
the trial court expressly indicated its intent to impute $290 in weekly income to Mother in its judgment.
See Appellant’s App. p. 52.
10
Nonetheless, the Guidelines recommend that, at a minimum, the following
five factors be considered:
(1) the value of the exemption at the marginal tax rate of each parent;
(2) the income of each parent;
(2) the age of the child(ren) and how long the exemption will be available;
(4) the percentage of the cost of supporting the child(ren) borne by each
parent; and
(5) the financial burden assumed by each parent under the property
settlement in the case.
Quinn v. Threlkel, 858 N.E.2d 665, 675 (Ind. Ct. App. 2006) (citations omitted). When
considering these factors, a trial court’s equitable discretion should be guided primarily
by the goal of maximizing the amount of support available to the child. Harris v. Harris,
800 N.E.2d 930, 941 (Ind. Ct. App. 2003), trans. denied. The noncustodial parent bears
the burden of demonstrating the tax consequences to each parent of transferring the
exemption as well as how the transfer would benefit the child. Id.In ordering that the parties share the tax exemption for R.H., the trial court noted
“the limited income that Mother presently earns” and the tax implications of its decision.
Appellant’s App. p. 53. Father earns significantly more than Mother, thus the exemption
potentially has greater value to Father. See Quinn, 858 N.E.2d at 675 (“We need not
disregard what we know about the federal tax code’s progressive rate scheme; it is
apparent that the exemption likely is worth considerably more to [the higher-income
parent] than [the lower-income parent] . . . .”). And Father has been assigned a greater
percentage of the burden of supporting R.H.—approximately eighty-three percent to
11
Mother’s seventeen percent. In light of these facts, we cannot say that the trial court
abused its discretion in ordering the parties to share the tax exemption for R.H.
II. Joint Legal Custody
Mother argues that the trial court erred in awarding the parties joint legal custody
because the parties are not able to communicate with one another about their child.
Determinations regarding child custody are within the sound discretion of the trial
court. Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct. App. 2008). We will affirm
the trial court’s decision in custody matters unless the court has abused its discretion.
The award of joint legal custody is governed by Indiana Code section 31-17-2-15, which
provides:
In determining whether an award of joint legal custody under section 13 of
this chapter would be in the best interest of the child, the court shall
consider it a matter of primary, but not determinative, importance that the
persons awarded joint custody have agreed to an award of joint legal
custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint
custody;
(2) whether the persons awarded joint custody are willing and able to
communicate and cooperate in advancing the child’s welfare;
(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) whether the child has established a close and beneficial
relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
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(6) the nature of the physical and emotional environment in the
home of each of the persons awarded joint custody.
“Therefore, trial courts must consider ‘whether the parents have the ability to work
together for the best interests of their children.’” Id. (quoting Arms v. Arms, 803 N.E.2d
1201, 1210 (Ind. Ct. App. 2004)). We are reluctant to reverse a trial court’s conclusion
that joint custody is appropriate. Id. (citing Walker v. Walker, 539 N.E.2d 509, 512 (Ind.
Ct. App. 1989)). “However, we will do so when the evidence indicates ‘a clear abuse of
trial court discretion in that the joint custody award constitutes an imposition of an
intolerable situation upon two persons who have made child rearing a battleground.’” Id.(quoting Aylward v. Aylward, 592 N.E.2d 1247, 1251 (Ind. Ct. App. 1992)).
Mother and Father testified that they had difficulty communicating with one
another, a fact the trial court noted at the close of the final hearing: “these two can’t get
along to save their soles [sic], so they’re going to have to do at least uptoparent.org[,] or
something.” Tr. p. 118. Although the court acknowledged the parties’ troubles, it also
appeared to hope that things might improve if the parties participated in a parenting
program for divorced families in conflict. Mother had completed the suggested program
by the time the court entered its judgment, and the Court explained that “the parties now
demonstrate [that] they have the ability to communicate regarding [R.H].” Appellant’s
App. p. 52. We are reluctant to reverse a trial court’s conclusion that joint custody is
appropriate and will only do so where a joint-custody award perpetuates an intolerable,
battleground-like situation. Swadner, 897 N.E.2d at 974. We cannot say that is the case
here. The trial court did not err in determining that joint legal custody was appropriate.
13
Affirmed in part, reversed in part, and remanded.
BAILEY, J., and BROWN, J., concur.
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