T.M. v. D.W. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 30 2015, 10:04 am
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 estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas N. Leslie Kathleen M. Meek
Indianapolis, Indiana Justin T. Bowen
Bowen & Associates
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
T. M., April 30, 2015
Appellant-Defendant, Court of Appeals Case No.
48A02-1407-JP-457
v. Appeal from the Madison Circuit
Court
D.W., Cause No. 48C02-1307-JP-170
The Honorable G. George Pancol,
Appellee-Plaintiff
Judge.
Friedlander, Judge.
[1] T.M. (Mother) appeals the trial court’s paternity order, which established
custody and support. She presents the following restated issues for review:
1. Did the trial court abuse its discretion when it refused Mother’s
request for attorney fees?
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2. Is D.W. (Father) still bound by a preliminary order requiring
him to pay the cost of Mother’s initial drug testing and
evaluation, which he has not paid?
On cross appeal, Father raises the following restated issue:
3. Did the trial court err in calculating Father’s parenting time
credit by failing to include all overnights?
[2] We affirm and remand.
[3] Child was born September 30, 2008, and lived with Mother and Father at
Father’s residence in Anderson until Mother moved out with Child on June 17,
2013. Mother moved her and Child’s belongings out of the residence without
any notice to Father and while he was at work. Eric Goodwin rented a truck
and assisted with the move to Goodwin’s home in Franklin, about an hour
away. Goodwin and Mother continue to reside together and plan to marry.
[4] On July 17, 2013, Father filed a Consolidated Verified Emergency Petition to
Establish Paternity, Child Custody, and Child Support. The trial court held a
brief hearing on September 5, 2013, at which the parties stipulated to Father’s
paternity of Child. In its provisional order, the court granted the parties joint
legal custody, Mother primary physical custody, and Father parenting time
pursuant to the Indiana Parenting Time Guidelines except that he would have
Child every weekend. Per Father’s request, the court also ordered the parties to
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submit to substance abuse evaluation and drug testing. The court ordered
Father to select a provider and pay for these initial costs for both parties.1
[5] The final hearing regarding custody and support took place on December 2,
2013 and April 2, 2014. Father presented evidence that he owns his own home
and has been employed with the same company for approximately twenty
years. He works about fifty hours per week and has an average weekly gross
income of $1129. With respect to Mother, evidence was presented that she is a
server at a restaurant in Franklin and works varying shifts, including double
shifts on the weekends. She grosses about $450 per week. She lives with
Goodwin in a home of which he has granted her part ownership.
[6] During her presentation of evidence, Mother testified that Father had not paid
for the initial substance abuse evaluation and testing, as previously ordered by
the court. She submitted the unpaid bill, which she indicated she continued to
receive in the mail. Mother requested that the court order payment by Father.
Additionally, Mother submitted evidence regarding the amount of her attorney
fees (approximately $16,000). Father stipulated to this evidence without the
need for Mother’s attorney to testify regarding the amount and its
reasonableness. Mother requested that the court order Father to pay her
attorney fees.
1
Mother’s test results were submitted to the court on October 31, 2013. She tested “negative for over twenty-
two drugs, including cocaine, opiates, synthetic opioids (methadone), amphetamines and others.” Appellant’s
Appendix at 10.
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[7] At the conclusion of the hearing, the trial court took the matter under
advisement and gave the parties thirty days to file proposed findings and
conclusions. The CCS reflects that the parties filed proposed orders, but the
filings have not been included in the record before us. On May 12, 2014, the
trial court issued its order. The court left the custody arrangement unchanged,
ordered Father to pay $112 per week in child support, determined the arrearage,
and directed the parties to pay their own attorney fees. Mother filed a motion
to correct error on June 5, 2014, which was summarily denied. Mother now
appeals.
[8] When a trial court issues specific findings of fact and conclusions of law
pursuant to Indiana Trial Rule 52, as in this case, we apply a two-tiered
standard of review. Without reweighing the evidence or assessing the
credibility of witnesses, we must determine “whether the evidence supports the
findings and whether the findings support the judgment.” Tompa v. Tompa, 867
N.E.2d 158, 163 (Ind. Ct. App. 2007). We will not set aside the trial court’s
findings or conclusions unless they are clearly erroneous—that is, if they are
unsupported by any facts and inferences contained in the record. Tompa v.
Tompa, 867 N.E.2d 158. We will find the judgment to be clearly erroneous if
we are left with a firm conviction that there has been a mistake. Id. Further, if
the findings and conclusions entered by the trial court are clearly inconsistent
with the judgment, “the decision must be set aside regardless of whether there
was evidence adduced at trial which would have been sufficient to sustain the
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decision.” Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008) (quoting
McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1252 (Ind. 1994)).
1.
[9] Mother claims that the trial court erred in rejecting her request to order Father
to pay her attorney fees and notes that the court made no findings of fact
supporting its decision. According to Mother, she is entitled to attorney fees
due to the large disparity of income between the parties.2
[10] When determining whether to award attorney fees, a trial court must consider
the resources of the parties, their relative earning ability, and other factors
bearing on the reasonableness of the award. See Connolly v. Connolly, 952
N.E.2d 203 (Ind. Ct. App. 2011). We review a trial court’s decision regarding
attorney fees for an abuse of discretion. Id. Further, “a trial court is not
required to give reasons for its determination.” Id. at 208.3
[11] Ind. Code Ann. § 31-14-18-2(a) (West, Westlaw current with all legislation of
the 2015 1st Regular Session of the 119th General Assembly effective through
2
Mother also argues that Father’s conduct during the proceedings created additional legal expenses for her.
She asserts that “while there was no official misconduct, the lengthiness of these proceedings was brought on
by Father’s lack of evidence and failure to adequately present his case for want of expert opinion testimony.”
Appellant’s Brief at 13. We find this argument, which was not raised below, unsupported by the record and
meritless.
3
In support of her apparent assertion that the trial court was required to explain its decision, Mother relies on
Masters v. Masters, 20 N.E.3d 158 (Ind. Ct. App. 2014). We observe, however, that the Indiana Supreme
Court granted transfer in Masters on April 2, 2015. Accordingly, the appeals court decision has been vacated
and has no precedential value. See Barth v. Barth, 693 N.E.2d 954 (Ind. Ct. App. 1998), trans. denied.
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March 24, 2015) provides that the trial court may order a party to pay a
reasonable amount for the opposing party’s attorney fees.4 The statute,
however, does not affirmatively require the trial court to award attorney fees.
As we have previously observed in this context, “[t]here is no abuse of
discretion for the trial court not to do that which it is not required to do.” Russell
v. Russell, 693 N.E.2d 980, 984 (Ind. Ct. App. 1998), trans. denied. See also
Tompa v. Tompa, 867 N.E.2d 158.
[12] Mother argues that she is entitled to attorney fees because Father’s income
significantly exceeds hers. “While disparity of income may be considered in
awarding attorney fees, a trial court is not required to award fees based on
disparity of income alone.” Russell v. Russell, 693 N.E.2d at 984. Because the
trial court was not affirmatively required to award attorney fees under I.C. § 31-
14-18-2, it did not abuse its discretion by denying Mother’s request.
2.
[13] Mother contends that the trial court should have included in its final order a
judgment for the court-ordered drug testing and evaluation costs that Father
had been previously ordered to pay, yet remained unpaid at the time of the final
hearing.5 Father, however, claims that his obligation to pay under the
4
This statute is substantially similar to that applied in the dissolution context. Accordingly, we may rely on
authority from both paternity and dissolution cases.
5
Mother’s appellate and reply briefs both have a page missing in this portion of her argument. We advise
counsel to be more cautious before filing briefs before this or any other court.
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provisional order was “merged and extinguished by the final Order.” Appellee’s
Brief at 14.
[14] In general, a provisional order terminates when the final decree is entered.
Mosser v. Mosser, 729 N.E.2d 197 (Ind. Ct. App. 2000). “Nevertheless, an
obligation accrued prior to the final decree survives.” Id. at 200 n.3.
[15] Here, the provisional order provided, with respect to drug testing, as follows:
“The parties are to both submit to substance abuse evaluation and drug testing.
The Father will pay the initial cost of these evaluations and tests. The Father
will select the provider. The Mother will then make arrangements and
appointments within thirty days.” Appellant’s Appendix at 6. The evidence
establishes that after Father selected the provider, Mother completed the initial
evaluation and testing on October 30, 2013.6 Five months later, Mother
testified at the final hearing that she continued to receive unpaid bills related to
this testing, and she submitted into evidence one such bill that she had received
in the mail. Mother asked the trial court to order Father to pay the amount due
for the initial drug testing and evaluation.
[16] The bill from Ameritox reflects laboratory services received by Mother on
October 30, 2013, in the total amount of $1012.35. Father claims that his
6
Father notes that Mother’s drug testing occurred thirty-four days after he notified her of the provider. He
claims that the delayed testing “voided even Father’s minimal requirement to be initially responsible for the
cost.” Appellee’s Brief at 16. Father did not assert this argument below and offers no authority for it on
appeal. Moreover, we observe that the order is vague, requiring Mother to “make arrangements and
appointments within thirty days” rather than requiring her to submit to testing within that time.
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hearsay objection to this evidence was improperly rejected by the trial court
because the bill was submitted to establish the amount due. Regardless of the
amount, Mother’s testimony establishes that Father failed to pay the bill as
ordered by the trial court. Further, our Supreme Court has indicated that
“[m]edical bills already charged can usually be admitted over any hearsay
objection either through testimony of the supplier… or through testimony of the
patient”. Cook v. Whitsell-Sherman, 796 N.E.2d 271, 278 (Ind. 2003). Cf. Barrix
v. Jackson, 973 N.E.2d 22, 29 (Ind. Ct. App. 2012) (bills inadmissible hearsay
where not admitted as a business record and proponents “also failed to adduce
testimony from [patient] that laid any form of foundation for admissibility of
the bills based upon her memory of having received those bills for treatment”),
trans. denied.
[17] We remand this cause to the trial court so that it may amend its final decree to
include an order directing Father to pay the costs of Mother’s initial drug
testing and evaluation.
3.
[18] On cross appeal, Father contends that the trial court erred in calculating child
support because it only credited him with 102-105 overnights per year.
According to Father, the parenting time credit should have been calculated
using 134 overnights.
[19] A trial court’s calculation of child support under the Indiana Child Support
Guidelines (the Guidelines) is presumptively valid. Young v. Young, 891 N.E.2d
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1045. We will reverse a trial court’s decision with respect to child support
matters only if it is clearly erroneous or contrary to law. Id.[20] Indiana Child Support Guideline 6 provides that “[a] credit should be awarded
for the number of overnights each year that the child(ren) spend with the
noncustodial parent.” The commentary to Guideline 6 provides that the
computation of this credit “will require a determination of the annual number
of overnights of parenting time exercised by the parent who is to pay child
support, the use of the standard Child Support Obligation Worksheet, a
Parenting Time Table, and a Parenting Time Credit Worksheet.” The
commentary further provides that a non-custodial parent exercising parenting
time pursuant to the Guidelines, without extending the weeknight period into
an overnight, will have approximately 98 overnights.
[21] In this case, the trial court determined that Father’s annual overnights will be
between 101 and 105, as he had been awarded parenting time in excess of the
Guidelines (every weekend rather than every other weekend). Father’s
assertion that he should have been credited with 134 overnights is neither
supported by the record nor adequately explained on appeal.
[22] We observe that Father has failed to provide us with the proposed child support
worksheet, parenting time credit worksheet, or findings that he submitted to the
trial court, and the number of overnights claimed by Father was not addressed
at the hearing. On appeal, Father supports his claim that he is entitled to 134
overnights with a simple footnote:
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The number of overnights for the extra weekend has been adjusted to
account for Mother’s summer and holiday parenting time, of
approximately eight weeks. The Court can take judicial notice of the
fact of the number of overnights awarded to Father. Ind. Evidence
Rule 201.
Appellee’s Brief at 18 n.1.
[23] Father’s explanation in his appellate brief as to how he calculates a parenting
time credit based on 134 overnights is entirely inadequate. Additionally, our
own crude calculations, based on admittedly incomplete information, result in
overnights closer to the trial court’s determination than Father’s. With the
limited record before us, we cannot conclude that the trial court’s determination
regarding overnights is clearly against the logic and effect of the facts and
circumstances before it. Father has failed to establish error.
[24] We affirm and remand.
Kirsch, J., and Crone, J., concur.
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