Cody Boruff v. Tiffany Boruff (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 22 2015, 6:33 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
Jeffry G. Price
Peru, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cody Boruff, April 22, 2015
Appellant-Petitioner, Court of Appeals Case No.
34A02-1412-DR-844
v. Appeal from the Howard Circuit
Court
Tiffany Boruff, The Honorable Lynn Murray, Judge
Appellee-Respondent
Cause No. 34C01-1308-DR-644
Najam, Judge.
Statement of the Case
[1] Cody Boruff (“Father”) appeals the dissolution court’s decree of dissolution of
his marriage to Tiffany Boruff (“Mother”). Father presents four issues for our
review:
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1. Whether the trial court abused its discretion when it
denied his motion to continue the final hearing.
2. Whether the trial court abused its discretion when it
calculated his child support obligation.
3. Whether the trial court abused its discretion when it
divided the marital estate.
4. Whether the trial court abused its discretion when it
ordered him to pay some of Wife’s attorney’s fees.
We affirm.
Facts and Procedural History
[2] Father and Mother were married in May 2012, and one child, K.B., was born
of the marriage in July 2012. On August 6, 2013, Father filed a petition for
dissolution of the marriage, and on August 23, Mother filed a “counter-
petition” for dissolution. Appellant’s App. at 11. On September 5, the parties,
by their respective attorneys, filed an agreed provisional order with the trial
court, and the trial court approved that order. Pursuant to the provisional
order, Mother had custody of K.B., and Father exercised parenting time and
was obligated to pay child support in the amount of $77 per week. But Father
did not comply with the child support order.
[3] In December 2013, Father’s attorney withdrew his representation of Father.
And on February 18, 2014, on Mother’s motion, the trial court issued an
income withholding order for child support to Wendy’s restaurant, Father’s
employer. Also on that date, Mother requested a final hearing on the
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dissolution petition, as well as a hearing on Mother’s affidavit for citation
alleging that Father was in contempt of court for failure to pay child support.1
The trial court set a hearing on both matters for March 27 (“the hearing”), and
it ordered Father “to complete the UpToParents.org program and file [the]
completion certificate with the Court prior to the hearing.” Id. at 4. The trial
court had originally ordered the parties to complete that program in August
2013, and Mother had filed her completion certificate with the trial court on
August 26, 2013.
[4] On March 24, 2014, three days before the hearing, Father filed a motion to
continue the hearing in order to obtain new counsel. The trial court granted
that motion and rescheduled the hearing for May 8, 2014. On May 7, a new
attorney filed her appearance with the trial court on Father’s behalf and
requested another continuance. The trial court granted that continuance and
rescheduled the hearing for August 7. The trial court also ordered the parties to
“submit all matters to mediation prior to the hearing[.]” Id. at 5.
[5] The parties were unable to attend the scheduled mediation because Father’s
attorney was ill. Accordingly, on August 6, Father moved to continue the
hearing scheduled for August 7. The trial court granted that motion but stated
1
Father has not included a copy of that affidavit in the appendix on appeal. In fact, Father’s appendix is
woefully deficient in that it includes only a copy of the Chronological Case Summary and the Decree of
Dissolution. We remind Father’s counsel to abide by Appellate Rule 50(A)(2) in the future.
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that “[n]o further continuances will be granted.” Id. at 6. The trial court
scheduled the hearing for October 8.
[6] On August 18, Father’s attorney filed a motion to withdraw, which the trial
court granted. On September 17, the parties advised the trial court that
mediation had “failed to result in a settlement.” Id. at 7. On October 6, two
days before the scheduled hearing, Father filed a motion to continue, and
Mother objected. The trial court denied that motion.
[7] At the October 8 hearing on the dissolution decree and on Mother’s affidavit for
citation, Mother was represented by counsel, but Father was pro se. At the
conclusion of the hearing, the trial court asked the parties to submit child
support worksheets and proposed orders. Father did not submit either a child
support worksheet or a proposed order to the trial court. And on November 3,
the trial court entered the final decree with the following relevant findings and
conclusions:
11. Petitioner shall complete the [UpToParents.org] workshop
within seven (7) days of the date of this Decree and submit proof
thereof to the Court[] or risk further proceedings for contempt of
the Court’s Order.
Child Custody—Physical
***
13. The parties agreed as a part of their provisional orders to
[Mother]’s primary physical custody of the minor child, and the
same has been maintained since that time.
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14. [Mother] requests that the same arrangement continue
following the dissolution of the parties’ marriage, and [Father]
does not object thereto.
15. Finding from the totality of the evidence presented that
such an arrangement is in the best interests of the minor child,
the Court places physical custody of the minor child [K.B.] with
[Mother].
Child Support
16. Because the Court places the physical custody of [K.B.]
with [Mother], the establishment of post-Decree child support is
also appropriate.
17. [Father] was employed as a manager during the course of
the dissolution proceedings, first at a local Wendy’s Restaurant,
and later at a Taco Bell restaurant in Grant County. [Father]
testified that he was unemployed from sometime in June[] 2014,
to sometime in August, 2014[] although his Facebook page
(Exhibit “F”) indicates that he obtained the Taco Bell job
sometime in June[] 2014.
18. Despite having such employments [sic], [Father] testified
that he voluntarily left both, and at the time of the final hearing
had no current income source.[Footnote: [Father] testified that
he “just obtained a job” at Kohl’s, in an undetermined position,
for an undetermined wage, for an undetermined duration[,] and
on an undetermined work schedule. The Court does not find
such representation, as made, to be credible.]
19. [Father] has sued his first employer and claims he was
directed by his lawyer to quit his second employment in order to
join the second employer as another Defendant in [Father]’s suit
against the first.
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20. In any event, it is clear that [Father] did not lose his
employment(s) [sic] through no fault of his own, but rather, by
virtue of his own volition. As such, attributing income at his
previous income level is appropriate under the circumstances.
21. [Mother]’s Exhibit “E,” a check for [Father’s] regular two
(2) week payroll, established [Father]’s gross weekly wage in
2013 near the time of the filing to be approximately $530.00.
22. [Father] testified that his “take-home” wage was “a couple
of hundred dollars higher than that evidenced by the Exhibit
when he left Wendy’s and[,] when he left Taco Bell[,] was “a
little more” than his ending wage at Wendy’s.
23. However, despite having received discovery, multiple
requests for compliance, an Order Compelling Compliance, and
finally a Sanctions Order from the Court, [Father] failed to
provide any proof as to the actual extent of his previous wages.
[Father]’s refusal to comply with the rules governing discovery
and the Court’s prior Order(s) do not form a basis for [Father]’s
relief from the Court’s valuation of his gross income in the
absence of evidence to the contrary.
24. Based upon the foregoing, the Court finds the [Father]’s
gross weekly wage should be attributed at $650.00 per week.
25. [Mother] is employed by AT&T, earns an hourly wage of
$12.40, with a guaranteed forty (40) hour work week. As long as
she makes her goals—which she had since starting with AT&T,
she is further guaranteed a monthly commission of thirteen
hundred dollars ($1,300.00).
26. Based upon the foregoing, the Court finds [Mother]’s gross
weekly wage to be $800.00 per week.
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27. [Mother] provides [K.B.] with employer-sponsored health
insurance for which she pays one hundred forty-four dollars
($144.00) monthly.
28. [Mother] pays her mother, with whom she lives, five
hundred dollars ($500.00) monthly in order to watch [K.B.] while
[Mother] works.
29. As further elaborated upon hereinafter, [Father] should be
afforded credit for parenting time pursuant to the Indiana
Parenting Time Guidelines (hereinafter “the Guidelines”) and
credited with ninety-eight (98) overnight visitations.
30. Based upon all of the foregoing parameters and the
attached Child Support Obligation Worksheet, [Father] shall pay
to [Mother] for the support of said minor child the weekly sum of
$121.00.
***
Property Distribution
45. [Father] and [Mother] have heretofore divided certain
assets of the parties.
46. Unless otherwise modified hereafter, [Father] and
[Mother] shall each have as their separate personal property all
furniture, household goods, personal clothing, jewelry and effects
now [in] their respective possessions.
47. Unless modified hereafter, each party shall further have as
his/her separate personal property all insurance policies and
accounts with financial institutions, which accounts exist in their
individual names alone.
***
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Motor Vehicles
50. During the marriage, [Father]’s vehicle was repossessed
for non-payment.
51. At the time of separation, [Father] took the ’99 Pontiac
Grand Prix which [Mother] brought into the marriage as a
graduation gift from her parent. That automobile is now
described as “broken.” [Father], who values the vehicle at
between $700.00 and $1,500.00, desires to retain the vehicle and
[Mother], reluctantly, does not want the vehicle back. [Father]
shall retain [the] ’99 Pontiac Grand Prix and its value, and is
responsible for any debt associated therewith. [Father] shall not
utilize that vehicle to transport the minor child for parenting time
unless and until it is adequately repaired.
Furniture, Appliances and Household Goods
52. Other than as already divided, or further specifically set
over in this Decree, [Father] shall have as his separate property
those items currently in his possession, as well as any boxes of
[Father]’s personal effects in the basement of [Mother]’s parents’
home.
53. Other than as already divided, or further specifically set
over in this Decree [Mother] shall have as her separate property
those items currently in her possession, as well as the following
specific item(s) of personalty currently in [Mother]’s possession:
55” LED TV, Xbox, Xbox Kinect, Xbox controllers, Blue Ray
3D DVD Player, and all associated accessories for each of those
items, as well as Grandpa’s hand-made shelf[.]
[Father] testified that these items were “well maintained” and the
same should be provided to [Mother] undiminished in condition.
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Debts
54. The parties have substantial debt[s] which existed at the
time of the filing, some of which are currently the subject of
litigation and all of which are summarized as follows (amounts
are approximations):
Portfolio Recovery Associates v. Tiffany Boruff For GE Capital
Retail Bank/HH Gregg (Cause No. 34C01-1404-CC-309)
$1,430.00
Law Office of David Sean Dufek/Tiffany Boruff For GE Money
Retail Bank/HH Gregg $1,625.00
Credit Collection Services/Cody & Tiffany Boruff For Allstate
Property & Casualty $115.00
Autumn Trace Apartments/Cody & Tiffany Boruff $1,500.00
First National Collection Bureau/Cody Boruff For First Premier
Bank $415.00
Bull City Financial Solutions/Cody Boruff For Duke Energy
$225.00
Xfinity/Tiffany Boruff $145.00
Allied Interstate/Tiffany Boruff For PNC Bank $720.00
55. The two (2) GE obligations arise from the parties[’]
purchase of the previously-distributed electronics. [Mother]
requested the possession of those items and agreed that she
should be responsible for the obligations associated therewith.
Having awarded [Mother] the requested property, the Court
agrees that this is equitable.
56. The Allied Interstate debt arose from [Father]’s execution
of a check on [Mother]’s account, when the account contained
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insufficient funds. In describing how he came to execute the
check, [Father] testified that [Mother] left her checkbook out and
that [Father] “would pay all of the bills.” In reviewing the
parties’ outstanding debts, the Court does not find such
representation, as made, to be credible.
57. [Father] acknowledged that he made no payment(s) with
respect to any of the foregoing debt(s) during the pendency of the
dissolution.
58. Accordingly, [Father] shall assume and pay the following
debts of the parties: Allstate Property & Casualty, Autumn Trace
Apartments, First Premier Bank, Duke Energy, Xfinity and PNC
Bank.
59. [Mother] shall assume and pay the following debts of the
parties: GE Capital Retail Bank and GE Money Retail Bank.
Equal Distribution
60. The Court, having considered the contribution of each
spouse to the acquisition of the property, the extent to which the
property was acquired by each spouse prior to the marriage, the
economic circumstances of each spouse at the time the
disposition of the property is to become effective, the conduct of
the parties during the marriage as related to the disposition or
dissipation of their property, and the earnings or earning ability
of the parties as related to the final division of property[,] and
final determination of the property rights of the parties, concludes
that an equal division of the marital property between the parties
is just and reasonable, and finds the same as set forth herein to be
an equal distribution of the marital estate.
***
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Affidavit [for] Citation
62. The Court provisionally ordered [Father], based upon his
agreement, to pay the sum of seventy-seven dollars ($77.00) per
week in provisional child support.
63. The Court finds the delinquency calculation provided by
[Mother]’s counsel, a copy of which is attached hereto and
incorporated herein by reference, to be a correct determination of
[Father]’s arrearage: to the date of the final hearing [Father] had
paid six hundred sixty-two dollars ($662.00) of the four thousand
three hundred eighty-nine dollars ($4,389.00) owed—an amount
less than twenty percent (20%).
64. [Father] admitted that he was substantially delinquent and
that he had been gainfully employed during the majority of the
pendency, but stated that he could not pay the child support
because he had “many other debts to pay.” As noted by the
Court previously, [Father] was not paying any of the parties’
joint debts. [Father] further admitted that since the separation he
has been residing in his mother’s home, where [he] is provided
with shelter, maintenance and a vehicle—all at no cost to him.
65. The Court finds that [Father] did intentionally and
willfully refuse to pay court-ordered child support when he had
the ability to do so. The Court finds [Father] in indirect
contempt of court as a consequence.
66. The Court further finds that [Father] should be sentenced
to ninety (90) days in jail without good time credit as a sanction
for his indirect contempt. That sentence is suspended, but shall
be imposed if [Father] fails to purge himself of his contempt as
set forth hereinafter.
67. In order to purge himself, [Father] shall do all of the
following:
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a. Within no more than seven (7) days of the Court’s entry of
this Decree, pay to the Clerk of the Howard County Courts
(Child Support Division) the sum of one thousand dollars
($1,000.00);
b. Pay the weekly child support amount established by this
Decree ($121.00) each and every week without fail;
c. Pay an additional weekly amount towards the reduction of
[Father]’s arrearage in the sum of twenty-five dollars ($25.00)
each and every week without fail;
d. Within no more than seven (7) days of the Court’s entry of
this Decree, complete his portion of the preparation of the 2012
state and federal income tax refund request as set forth below;
and
e. Pay the attorney fees as ordered below.
***
Attorney Fees
75. Provisional attorney fees were reserved by the parties in
the Agreed Provisional Orders.
76. The Court’s findings above support an award of attorney
fees against [Father], both with respect to the divorce-related
issues generally, as well as with respect to the Citation-related
issues.
77. [Father] shall pay a portion of [Mother]’s final attorney
fees in the amount of four thousand dollars ($4,000.00) as
follows: $250.00 per month, commencing on the first day of
November, and following the first day of every month thereafter
until paid. Interest shall not accrue on the unpaid balance, nor
shall it be treated as a judgment, except in default. [Father] is
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reminded that the payment of attorney fees as set forth herein is
also a continuing basis for the purging of [Father]’s indirect
contempt of Court.
Appellant’s App. at 12-24. This appeal ensued.2
Discussion and Decision
Standard of Review
[8] The trial court here entered findings and conclusions to accompany its
dissolution decree. However, it does not appear that either party requested
such findings in accordance with Indiana Trial Rule 52(A). “In such a
situation, 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.” Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013). 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. 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
2
On November 10, 2014, Father filed with the trial court a certificate of completion of the UpToParents.org
program.
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the evidence of record to determine if the result is against the facts and
circumstances before the court. Id.[9] When reviewing the accuracy of findings entered sua sponte, we first consider
whether the evidence supports them. Id. Next, we consider whether the
findings support the judgment. Id. We will disregard a finding only if it is
clearly erroneous, meaning the record contains no facts to support it either
directly or by inference. Id. We will not reweigh the evidence or judge witness
credibility. Id. at 999. “A judgment also is clearly erroneous if it relies on an
incorrect legal standard, and we do not defer to a trial court’s legal
conclusions.” Id. at 998-99.
[10] We note that Mother has not filed an appellee’s brief. When an appellee fails to
submit a brief, we do not undertake the burden of developing the appellee’s
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).
Issue One: Motion to Continue
[11] Father first contends that the trial court abused its discretion when it denied his
motion to continue the hearing on the dissolution petition and on Mother’s
affidavit for citation. Under the trial rules, a trial court shall grant a
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continuance upon motion and “a showing of good cause established by
affidavit or other evidence.” Ind. Trial Rule 53.5; Gunashekar v. Grose, 915
N.E.2d 953, 955 (Ind. 2009). A trial court’s decision to grant or deny a motion
to continue a trial date is reviewed for an abuse of discretion, and there is a
strong presumption the trial court properly exercised its discretion. Gunashekar,
915 N.E.2d at 955. A denial of a motion for continuance is an abuse of
discretion only if the movant demonstrates good cause for granting it. Id.
[12] Father contends that, “[w]ithout legal counsel, [he] was unprepared and ill[-]
equipped to represent himself at the contested final hearing.” Appellant’s Br. at
8. Thus, he maintains that the trial court abused its discretion when it denied
his motion to continue. We cannot agree.
[13] First, Father does not direct us to anything in the record showing that he
supported his motion to continue with an affidavit or other evidence, as
required by Trial Rule 53.5. Second, Father had more than six weeks from the
time his attorney withdrew her appearance until the final hearing to obtain new
counsel, but he did not do so. And Father does not describe what efforts he
made, if any, to obtain new counsel during that time. The trial court did not
abuse its discretion when it denied Father’s motion to continue the hearing.
See, e.g., Gunshekar, 915 N.E.2d at 955 (holding trial court did not abuse its
discretion in denying motion to continue trial where pro se defendants “said
nothing to the trial judge to indicate whether they were diligent in trying to
engage new counsel or whether they did nothing at all during the eight weeks
after [their] attorney . . . withdrew”).
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Issue Two: Child Support
[14] Father next contends that the trial court abused its discretion when it calculated
his 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. Again, 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.[15] Father maintains that, in calculating his child support obligation, the trial court
relied on a pay stub that “does not reflect [Father]’s current gross weekly
income” and “there was no evidence at the final hearing as to what his pay
from [his current job at] Kohl’s would be.” Appellant’s Br. at 9. And, citing
Indiana Child Support Guideline 3(B)(2),3 Father asserts that “[t]he child
support guidelines demand that verification of the income of both parties be
provided.” Appellant’s Br. at 9. But Father ignores the fact that he did not
comply with discovery orders regarding proof of his income, and, more
importantly, he did not submit a child support worksheet to the trial court.
[16] “Waiver is an intentional relinquishment of a known right involving both
knowledge of the existence of the right and the intention to relinquish it.”
3
Child Support Guideline 3(B)(2) provides in relevant part that parents should document both their current
and past income with paystubs or employer statements.
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Hamlin v. Sourwine, 666 N.E.2d 404, 409 (Ind. Ct. App. 1996). Here, at the
conclusion of the final hearing, the trial court asked the parties to submit child
support worksheets pursuant to Child Support Guideline 3(B)(1). But, while
Mother submitted a worksheet, Father did not. And, while Father testified at
the final hearing regarding his prior income, he presented no evidence regarding
his current income. We hold that Father has waived this issue for our review.
See Butterfield v. Constantine, 864 N.E.2d 414, 417 (Ind. Ct. App. 2007) (holding
father waived challenge to child support order where he did not submit a child
support worksheet to the trial court).
[17] Waiver notwithstanding, the trial court based its child support order on the
evidence presented at the final hearing and Mother’s child support worksheet.
The Indiana Child Support Guidelines provide that if a parent is voluntarily
unemployed or underemployed, child support shall be determined based on
potential income. Ind. Child Support Guideline 3(A)(3). “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 earning levels in the
community.” Id. The purposes behind determining potential income are to
“discourage a parent from taking a lower paying job to avoid the payment of
significant support” and to “fairly allocate the support obligation when one
parent remarries and, because of the income of the new spouse, chooses not to
be employed.” Child Supp. G. 3 cmt. 2(c). A trial court has wide discretion
with regard to imputing income to ensure the child support obligor does not
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evade his or her support obligation. Apter v. Ross, 781 N.E.2d 744, 761 (Ind. Ct.
App. 2003), trans. denied.
[18] Here, Father testified that he voluntarily left his employment at Wendy’s,
where he was earning approximately $596 per week4 at the time he quit, and
Taco Bell, where he was earning “a couple hundred dollars more” per paycheck
than he was earning at Wendy’s. Tr. at 80. Father testified further that he had
just obtained employment at Kohl’s, but he did not know what his pay or hours
would be. The trial court imputed Father’s weekly income at $650, and Father
has not shown that the court abused its considerable discretion in that regard.
See Apter, 781 N.E.2d at 761. We cannot say that the trial court abused its
discretion when it ordered Father to pay $121 weekly in child support.
Issue Three: Marital Estate
[19] Father next contends that the trial court abused its discretion when it divided
the marital estate. In particular, Father maintains that he cannot afford to pay
the debts assigned to him in the dissolution decree. The division of marital
assets and liabilities lies within the sound discretion of the trial court, and we
will reverse only for an abuse of that discretion. Keown v. Keown, 883 N.E.2d
865, 868 (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial
court’s decision is clearly against the logic and effect of the facts and
4
Mother submitted one of Father’s Wendy’s paystubs showing that his weekly gross pay was $528.50, but
he testified that, at the time he left that job, he was earning $1192 biweekly. Tr. at 46.
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circumstances presented. Id. When we review a challenge to the trial court’s
division of marital property, we may not reweigh the evidence or assess the
credibility of witnesses, and we will consider only the evidence most favorable
to the trial court’s disposition of marital property. Id.[20] Here, the trial court divided the marital estate between the parties equally.
Father does not contend that the trial court erred when it calculated the parties’
assets and liabilities or that the court deviated from the presumptive equal
division of the marital estate. Father’s sole contention is that the trial court
abused its discretion “by requiring [him] to make payments, for which he does
not have adequate income and does not have any other resource with which to
comply with the court’s order.” Appellant’s Br. at 13. In essence, then, Father
contends that the trial court should have awarded him more than fifty percent
of the marital estate.
[21] The trial court’s discretion in the disposition of marital property is subject to the
statutory presumption for equal distribution. Doyle v. Doyle, 756 N.E.2d 576,
578 (Ind. Ct. App. 2001). The presumption that an equal division of marital
property would be just and reasonable may be rebutted by a party who presents
relevant evidence, including evidence concerning the following factors, that an
equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was income
producing.
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(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the
disposition of the property is to become effective, including the
desirability of awarding the family residence or the right to dwell
in the family residence for such periods as the court considers just
to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to
the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the
parties.
Id. (quoting Ind. Code § 31-15-7-5). The statutory presumption must be
followed absent evidence that an equal division would not be just and
reasonable. Id. The party challenging the trial court’s property division must
overcome a strong presumption that the trial court complied with the statute
and considered evidence of the statutory factors. Id. We note that, while the
statute provides that marital property shall be divided “in a just and reasonable
manner,” the term “just” invokes a concept of fairness and of not doing wrong
to either party; however, “just and reasonable” does not necessarily mean equal
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or relatively equal. Id. (quoting Swinney v. Swinney, 419 N.E.2d 996, 998 (Ind.
Ct. App. 1981), trans. denied).
[22] Here, Father’s sole contention on appeal is, in effect, that the trial court did not
properly consider the parties’ economic circumstances at the time of the final
hearing. But, again, Father did not comply with discovery or otherwise present
evidence regarding his income at the time of the final hearing, and the
undisputed evidence showed that he lived with his mother rent-free. Father’s
bald assertion that he cannot afford to pay the debts assigned to him, without
more, fails to demonstrate that the division of property, including the debts of
the marriage, is unjust or unreasonable. The trial court did not abuse its
discretion when it divided the marital estate.
Issue Four: Attorney’s Fees
[23] Finally, Father contends that the trial court abused its discretion when it
ordered him to pay $4,000 of Wife’s attorney’s fees. In particular, Father
maintains that the trial court did not take into account the parties’ relative
economic resources. But, without regard to economic resources, once a party is
found in contempt,5 the trial court has “the inherent authority to compensate
the aggrieved party for losses and damages resulting from another’s
contemptuous actions.” Adler v. Adler, 713 N.E.2d 348, 355 (Ind. Ct. App.
1999) (quoting Crowl v. Berryhill, 678 N.E.2d 828, 832 (Ind. Ct. App. 1997)).
5
The trial court ordered the attorney’s fees as part of the contempt finding.
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Such inherent authority includes the award of attorney’s fees that were
expended by a party in order to enforce a child support order and judgment.
See Topolski v. Topolski, 742 N.E.2d 991, 996 (Ind. Ct. App. 2001). Here,
because Father was in contempt for failure to pay child support, the trial court
did not abuse its discretion when it awarded Mother $4,000 in attorney’s fees.
[24] In sum, Father has not established prima facie error, and the trial court did not
abuse its discretion with respect to the dissolution decree.
[25] Affirmed.
Baker, J., and Friedlander, J., concur.
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