Opinion
Court of Appeals Case No. 20A-DC-1432
03-29-2021
Brent C. FAULK, Appellant-Respondent, v. Callie J. (Bissell) FAULK, Appellee-Petitioner
Case Summary
[1] Brent C. Faulk (Father) appeals the decree dissolving his marriage to Callie J. (Bissell) Faulk (Mother), in which the trial court changed the surname of the parties’ son (Child) from Bissell to Bissell-Faulk. Father argues that the trial court erred in not changing Child's surname to match his, in calculating Mother's income and his income for child support purposes, and in placing limits on his opportunities for additional parenting time. We conclude that the trial court erred in changing Child's surname and in calculating Mother's income, but that it did not err in calculating Father's income or in placing limits on his opportunities for additional parenting time. Accordingly, we affirm in part, reverse in part, and remand. Facts and Procedural History
[2] The parties were married in February 2017, and Mother changed her surname from Bissell to Faulk. Mother became pregnant with Child in December 2017. In June 2018, Mother left the marital residence and moved into her parents’ home, where she has lived ever since. Mother filed a petition to dissolve the marriage on July 11, 2018. Child was born on August 27, 2018. Before Father was able to visit Child in the hospital, Mother signed Child's birth certificate and named him J.L. Bissell, instead of C.J. Faulk, as the parties had previously agreed.
Mother had obtained a protective order against Father, which was not dismissed until the first day of the final dissolution hearing.
[3] In March 2020, the trial court held a two-day final hearing. Neither party had filed a petition to change Child's name, but Father asked that his surname be changed to Faulk, Tr. Vol. 3 at 102, and Mother asked that his surname either not be changed or be changed to Bissell-Faulk. Tr. Vol. 2 at 146. Mother timely requested the entry of special findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). In April 2020, the trial court issued a dissolution decree that contains the following relevant findings and conclusions:
34. Mother's gross weekly income [as a high school teacher] is $921.00 per week.
35. The parties stipulated that Father's gross annual income shall be $90,000.00, or $1,731.00 per week, for purposes of calculating child support.
36. Father is the owner of a construction business and his income can be variable.
37. Father has not filed tax returns for 2018 or 2019, thus the potential variability from the stipulated amount of Father's income is unknown.
....
67. [I]t is in the best interests of [Child] that Mother exercise primary physical custody of [Child] subject to Father's parenting time.
....
74. [T]he Court concludes it is in the best interests of [Child] that [the parties] exercise joint legal custody. ....
....
80. Father shall pay to Mother the sum of $208.00 per week in support of [Child] as set forth on the Child Support Worksheet
....
81. Father's child support obligation is based upon an annual gross income of $90,000.00 per year. If Father earns more than $90,000.00 in gross income in any year, he shall pay eleven percent (11%) of any gross income above $90,000.00.
....
87. [Child's] name shall be changed to [J.L. Bissell-Faulk].
....
88. The existing marital relationship is irretrievably broken and dissolved and the parties are restored to the state of unmarried persons.
89. Mother's maiden name of "Bissell" is hereby restored.
Appealed Order at 6-15.
[4] Father now appeals. Additional facts will be provided below.
Discussion and Decision
Section 1 – The trial court erred in changing Child's surname because it had no statutory authority to do so.
[5] Father first contends that the trial court erred in changing Child's surname to Bissell-Faulk, claiming that it is in Child's "best interests to bear the surname Faulk." Appellant's Br. at 13. We agree with Father that the trial court erred in changing Child's surname, but strictly on the basis that the trial court had no statutory authority to do so.
[6] Our supreme court has explained that under the common law, "a person may lawfully change his or her name without resort to any legal proceedings where it does not interfere with the rights of others and is not done for a fraudulent purpose." Leone v. Comm'r, Ind. Bureau of Motor Vehicles , 933 N.E.2d 1244, 1252 (Ind. 2010). "A person effects a common-law change of name by usage or habit." Id. "The very nature of a common-law name change means it does not require a court's approval." Id. But "only a statutorily authorized court order gives legal sanction to a name change." Id. at 1254. Here, the trial court had no statutory authority to order a change of Child's legal name.
[7] Of the many statutes governing marital dissolution actions, only Indiana Code Section 31-15-2-18 authorizes a name change, and that is for "[a] woman who desires the restoration of her maiden or previous married name[.]" The woman "must set out the name she desires to be restored to her in her petition for dissolution as part of the relief sought. The court shall grant the name change upon entering the decree of dissolution." Id. Mother's petition does not appear in the record before us, but we presume that she must have requested a name change because the trial court restored her maiden name in the decree.
[8] The only statute that would authorize a name change for Child is Indiana Code Section 34-28-2-2, which requires "a parent or guardian who wishes to change the name of a child" to file a petition, which "must be verified" and "must state in detail the reason the change is requested." Ind. Code § 34-28-2-2(b). In addition, with exceptions not relevant here, "the written consent of a parent, or the written consent of the guardian if both parents are dead, must be filed with the petition." Id. "Before a minor child's name may be changed, the parents or guardian of the child must be served with a copy of the petition as required by the Indiana trial rules." Ind. Code § 34-28-2-2(c). And, upon filing a petition for a name change, the applicant must give public notice of the petition pursuant to Indiana Code Section 34-28-2-3. None of these procedures were followed in this case, and therefore Child's name change was not authorized by statute. Accordingly, we reverse and remand with instructions to vacate Child's surname change in finding 87 of the decree.
The petition may be filed in circuit, superior, or probate court. Ind. Code § 34-28-2-1.
Indiana Code Section 34-28-2-4 includes additional procedural mandates with respect to a petition for changing the name of a minor pursuant to Indiana Code Section 34-28-2-2(b) :
(a) Proof of the publication required in this chapter is made by filing a copy of the published notice, verified by the affidavit of a disinterested person, and when proof of publication is made, the court shall, subject to the limitations imposed by subsections (b), (c), and (d), proceed to hear the petition and make an order and decree the court determines is just and reasonable.
(b) In the case of a petition described in section 2(b) of this chapter, the court may not hear the petition and issue a final decree until after thirty (30) days from the later of:
(1) the filing of proof of publication of the notice required under subsection (a); or
(2) the service of the petition upon the parents or guardian of the minor child.
(c) In the case of a petition described in section 2(b) of this chapter, the court shall set a date for a hearing on the petition if:
(1) written objections have been filed; or
(2) either parent or the guardian of the minor child has refused or failed to give written consent as described in section 2(b) of this chapter.
The court shall require that appropriate notice of the hearing be given to the parent or guardian of the minor child or to any person who has filed written objections.
(d) In deciding on a petition to change the name of a minor child, the court shall be guided by the best interest of the child rule under IC 31-17-2-8. However, there is a presumption in favor of a parent of a minor child who:
(1) has been making support payments and fulfilling other duties in accordance with a decree issued under IC 31-15, IC 31-16, or IC 31-17 (or IC 31-1-11.5 before its repeal); and
(2) objects to the proposed name change of the child.
We note that the trial court in this case made no findings regarding Child's best interest with respect to a name change. Father was found in contempt for failing to pay child support in August 2019, but he was current in his support obligation at the final hearing and objected to Mother's proposal to hyphenate Child's surname.
Section 2 – The trial court abused its discretion in not imputing income to Mother.
[9] Next, Father contends that the trial court erred in failing to impute income to Mother in calculating her weekly gross income for child support purposes. Specifically, he maintains that Mother's residence with her parents and their subsidizing of in-kind benefits increases Mother's income available to support Child.
[10] Where, as here, a trial court has entered findings of fact and conclusions thereon pursuant to a party's request, we engage in a two-tiered standard of review: we determine whether the evidence supports the findings and then determine whether the findings support the judgment. Henry v. Henry , 758 N.E.2d 991, 992 (Ind. Ct. App. 2001). "The court's findings and judgment will not be reversed unless clearly erroneous." Id. "Findings of fact are clearly erroneous when the record lacks any facts or reasonable inferences from the evidence to support them. The judgment is clearly erroneous when it is unsupported by the findings of fact and conclusions entered on the findings." Id. at 992-93 (citation omitted). We neither reweigh evidence nor judge witness credibility, but "consider only the evidence favorable to the judgment and all reasonable inferences therefrom." Id. at 993. A trial court's child support calculation is presumptively valid and will be upheld unless the court has abused its discretion, that is, "when its decision is clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law." Martinez v. Deeter , 968 N.E.2d 799, 805 (Ind. Ct. App. 2012).
[11] The Indiana Child Support Guidelines require a trial court to determine the proper level of child support by calculating each parent's weekly gross income. Ind. Child Support Guideline 1. Indiana Child Support Guideline 3(A)(2) provides, "Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business should be counted as income if they are significant and reduce personal living expenses. Such payments might include a company car, free housing, or reimbursed meals." The commentary to this Guideline explains that
regular and continuing payments made by a family member, subsequent spouse, roommate or live-in friend that reduce the parent's costs for rent, utilities, or groceries, may be the basis for imputing income. The marriage of a parent to a spouse with sufficient affluence to obviate the necessity for the parent to work
may give rise to a situation where either potential income or imputed income or both should be considered in arriving at gross income.
Ind. Child Support Guideline 3(A), cmt. 2(d).
[12] In Glass v. Oeder , 716 N.E.2d 413 (Ind. 1999), our supreme court affirmed the trial court's imputation of $1500 per month for the self-employed father's rent-free living arrangement, which "presumably free[d] up money for the support of his children" and was "reasonable based on the description of the house." Id. at 417. By contrast, in Thomas v. Orlando , 834 N.E.2d 1055 (Ind. Ct. App. 2005), this Court affirmed the trial court's refusal to impute income in a rent-free living situation, as the mother was a full-time student with no income, and therefore the rent-free living arrangement did not free up money for the mother to support the child. Id. at 1060-61.
[13] Here, unlike the mother in Thomas , Mother is gainfully employed as a high school teacher. In calculating Mother's weekly gross income, the trial court used her annual salary of $48,000. Mother acknowledged that she has up to eight weeks of summer vacation during which she has the opportunity to seek additional employment, but she has yet to do so. Evidence was also presented that she lives rent-free with her parents and has no plans to obtain her own residence. She estimated that the cost of her own housing would be approximately $1000 per month for a two-bedroom apartment. Mother also admitted that she does not contribute to the utility, taxes, or insurance expenses while residing with her parents.
[14] Although Mother is gainfully employed in a full-time position, her decision not to seek work during her summer break is guided by her desire to spend time with Child and to avoid incurring more childcare costs. "[C]hild support orders cannot be used to force parents to work to their full economic potential or make their career decisions based strictly upon the size of potential paychecks." In Re Paternity of E.M.P. , 722 N.E.2d 349, 351-52 (Ind. Ct. App. 2000). Nevertheless, Mother's rent-free living arrangement with her parents unquestionably reduces her living expenses and frees up money to support Child. Accordingly, we reverse and remand with instructions to include the value of Mother's in-kind benefits in the calculation of her weekly gross income for child support purposes and amend the decree accordingly.
Section 3 – The trial court did not abuse its discretion in adopting an 11% true-up for calculating Father's child support obligation.
[15] Because Father is self employed and enjoys a fluctuating income in any given year, the trial court used a base yearly gross income to calculate his child support and included a true-up percentage in case he earns more than the anticipated yearly gross income. Father now challenges the trial court's adoption of an 11% true-up in the event his yearly gross income exceeds $90,000.
[16] Commentary 2(b) to Indiana Child Support Guideline 3(A) provides,
One method of treating irregular income is to determine the ratio of the basic child support obligation (line 4 of the worksheet) to the combined weekly adjusted income (line 3 of the worksheet) and apply this ratio to the irregular income during a fixed period. For example, if the basic obligation was $110.00 and the combined income was $650.00, the ratio would be .169 ($110.00/$650.00). The order of the court would then require the obligor to make a lump sum
payment of .169 of the obligor's irregular income received during the fixed period.
The use of this ratio will not result in an exact calculation of support paid on a weekly basis. It will result in an overstatement of the additional support due, and particularly so when average irregular income exceeds $250.00 per week or exceeds 75% of the regular adjusted Weekly Gross Income. In these latter cases the obligor may seek to have the irregular income calculation redetermined by the court.
[17] In Martinez , 968 N.E.2d 799, this Court reversed and remanded the trial court's child support order due to conflicting findings regarding the amount that the father owed based on his bonus income. The Martinez court noted that the parties had agreed to use a percentage method to calculate the father's child support obligation but were unable to agree to the percentage amount; the court further noted that given the parties’ agreement and Commentary 2(b), it would have been proper to calculate the father's "child support by using a percentage amount, and the percentage amount used by the trial court on remand is within the trial court's discretion." Id. at 807.
[18] In this case, Father stipulated to a base income of $90,000 and acknowledged that his income fluctuates and that a true-up of support would be proper; however, Father testified that his income fluctuations can be very large and expressly rejected Mother's proposed 11% true-up in exchange for a true-up method that would not overstate any additional support owed. There is no evidence in the record as to the income tax rate paid by Father, nor does Father propose a different method to address the income amount that exceeds his base income. Rather, Father focuses on the possible overstatement that may result when the irregular income exceeds a certain amount.
[19] As mentioned above, Commentary 2(b) specifically provides that "the obligor may seek to have the irregular income calculation redetermined by the court." In other words, for any year in which the calculation of irregular income results in an overstatement of support, the obligor may simply file a motion seeking an adjustment for that year. In light of the foregoing, we conclude that Father has failed to establish that the trial court abused its discretion in adopting an 11% true-up for calculating his child support obligation.
Section 4 – The trial court did not abuse its discretion in placing limits on Father's opportunities for additional parenting time.
[20] Finally, Father contends that the trial court erred in placing limits on his opportunities to exercise additional parenting time with Child. "A trial court's determination of a parenting time issue is afforded latitude and deference; we reverse only when the trial court abuses its discretion." Dumont v. Dumont , 961 N.E. 2d 495, 501 (Ind. Ct. App. 2011), trans. denied (2012). "If supported by a rational basis, the trial court's determination does not constitute an abuse of discretion." Id. "Thus, it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended by the for appellant before there is a basis for reversal." Id. (citation and quotation marks omitted). "We will not reweigh the evidence or judge the credibility of the witnesses." Id. "In all parenting time issues, courts are required to give foremost consideration to the best interest of the child." Id.
[21] The Indiana Parenting Time Guidelines (IPTG) discuss the opportunity for additional parenting time by allowing the noncustodial parent the right of first refusal to provide childcare:
Opportunity for Additional Parenting Time. When it becomes necessary that a child be cared for by a person other than a parent or a family member, the parent needing the childcare shall first offer the other parent the opportunity for additional parenting time. The other parent is under no obligation to provide the childcare. If the other parent elects to provide this care, it shall be done at no cost.
Ind. Parenting Time Guideline § I(C)(3). The commentary to this subsection explains:
The rule providing for opportunities for additional parenting time promotes the concept that a child receives greater benefit from being with a parent rather than a childcare provider. It is also intended to be practical. When a parent's work schedule or other regular recurring activities require hiring a childcare provider, the other parent should be given the opportunity to provide the care. Distance, transportation or time may make the rule impractical. Parent should agree on the amount of childcare time and the circumstances that require the offer to be made.
[22] The Guidelines’ imposition of a preference for parental childcare is based on the premise that it is usually in a child's best interest to have frequent, meaningful, and continued contact with each parent. B.L. v. J.S. , 59 N.E.3d 253, 262 (Ind. Ct. App. 2016), trans. denied. It is presumed that the Guidelines apply in all cases that they cover, but a trial court may, within its discretion, determine that a deviation is necessary or appropriate. Id. "Any such deviation must be accompanied by a written explanation." Id.
[23] Father's argument is centered on a custody evaluation by Dr. Bart Ferraro and the concerns expressed therein. While recommending a formal designation of "Joint Physical Custody," Dr. Ferraro's evaluation indicates that Mother would provide the majority of care and be the "primary home base" for Child. Appellant's App. Vol. 2 at 157. With respect to Mother's parents and the opportunity for additional parenting time, Dr. Ferraro noted,
It is recommended that even before this [referring to Dr. Ferraro's recommendation that Mother immediately move from her parents’ home] occurs, as it relates to the Opportunity for Additional Parenting Time, that [Mother's parents] not be authorized to provide childcare for [Child] for any period of two hours or greater, if [Father] is available to personally provide such care.
Id. at 158.
[24] In its decree, the trial court specifically noted that Dr. Ferraro's evaluation "weigh[ed] heavily" in its determination of parenting time. Appealed Order at 11. Regarding the issue before us, the trial court concluded:
68. Father shall be entitled to exercise parenting time in accordance with the IPTG for a child three (3) years of age, including holidays and special days, and progressing in accordance with the IPTG as [Child] ages thereafter. In addition, Father shall be entitled to two four-hour evening visits per week unless he exercises the opportunity for additional parenting time ("OAPT").
69. On days that Mother is working and Father is available to provide care, Father shall have the right to exercise OAPT subject to the following:
a. Father shall provide no less than forty-eight (48) hours advance notice for each day he requests to exercise OAPT;
b. Father shall meet Mother no later than 7:30 a.m. on each day he intends to exercise the right of first refusal; if Father is not at the parenting time exchange location at said time, he shall forfeit the OAPT on that day.
c. To balance parenting time with [Child], on days Father exercises the OAPT he shall return [Child] to Mother at 4:00 p.m.
Id.
[25] Father contends that the trial court not only failed to include Dr. Ferraro's recommendation to limit Mother's parents’ role as caregivers to Child, but also limited Father's opportunities for additional parenting time, as he will be forced to choose between his scheduled parenting time and additional parenting time. More specifically, Father asserts that "[t]he limitation, if read strictly, implies that Father only may exercise additional parenting time when Mother is working. Furthermore, if Father does elect to exercise additional parenting time, Father then loses his scheduled parenting time." Appellant's Br. at 21-22.
[26] Contrary to Father's contention, we conclude that the trial court fashioned Father's opportunity to exercise additional parenting time with his Child within the spirit of Dr. Ferraro's recommendation of limiting Mother's parents’ childcare while maintaining Father's regular parenting time schedule. First, the decree specifically sets out Father's regular parenting time in accordance with the Guidelines for a child of Child's age. In addition, Father is given the opportunity, with certain conditions, to spend additional time with Child. This additional time will occur when Mother is at work and unavailable to care for Child at the "primary home base." Appellant's App. Vol. 2 at 157. Father's exercise of additional parenting opportunities will, at the same time, limit Mother's parents’ childcare, as recommended by Dr. Ferraro. However, when Father exercises the additional parenting time on a day when he also has regular evening parenting time, Father would forgo the evening parenting time. As Father would have eight hours of parenting time on days when he exercises the additional parenting time, it would be equitable for Mother to have parenting time in the evening on those days, especially in light of Child's young age and Mother's role as primary physical caregiver.
[27] Accordingly, in light of Dr. Ferraro's recommendations and concerns as well as Child's age, we find no abuse of discretion in the trial court's placement of limits on Father's opportunities for additional parenting time. Therefore, we affirm that portion of the decree.
[28] Affirmed in part, reversed in part, and remanded.
Najam, J., concurs.
Riley, J., concurs in part and dissents in part with opinion.
Riley, Judge concurring in part and dissenting in part
[29] While I agree with the majority's holding with respect to the parties’ income for child support purposes and placing limits on Father's opportunities for additional parenting time, I respectfully disagree with the majority's analysis and conclusion regarding Father's request to change the Child's surname. Even though I agree with the majority's analysis that the legislature instituted a procedure for the name change of a minor child in Ind. Code Ch. 34-28-2, it should be noted that neither the parties nor the trial court relied on this statute or proceeding but rather formulated the request for the name change as an issue within the framework of the dissolution proceeding and Mother did not object to proceeding as such. [30] Father contends that the trial court abused its discretion by changing the Child's surname to the hyphenated name of both parents’ family names, which is "in contradiction of the preference of the law for a child by married persons to take the father's name." (Appellant's Br. p. 9). Relying on the statutory procedure for a minor child's name change in paternity proceedings as well as its accompanying case law, Father asserts that it would be in the Child's best interest to take Father's surname in accordance with the parties’ agreement prior to the commencement of the divorce proceedings.
[31] Father's main reliance is on Indiana Code section 16-37-2-15, which provides that "[i]f the parents of a child born out of wedlock in Indiana later marry, the child shall legally take the last name of father." Acknowledging that his Child was born in wedlock, Father nonetheless focuses on Indiana's case law analyzing parents’ disagreements on the selection of a child's name in paternity proceedings. In both In re Paternity of Tibbitts , 668 N.E.2d 1266 (Ind. Ct. App 1996) and C.B. v. B.W. , 985 N.E.2d 340 (Ind. Ct. App. 2013), this court noted that, in paternity proceedings, both parents enjoy equal rights with regard to support, custody, and visitation of a child. Applying this notion of equality to the naming of the child, the court in each case focused on whether a change of name would be in the best interest of the child.
[32] Although Indiana law covers name changes in general and in paternity proceedings, no Indiana court has previously considered the question of whether the name of a child born in wedlock should be changed to that of father's surname over the objection of the other parent. Courts in other jurisdictions have addressed the issue, mainly in the context of a divorced mother seeking leave to change her child's name to her maiden name, e.g. , Petition of Harris , 160 W.Va. 422, 236 S.E.2d 426 (1977), or to append her maiden name to the child's paternal surname, e.g., Laks v. Laks , 540 P.2d 1277 (Ct. App. Ariz. 1975). Courts have reached conflicting results; nevertheless, all agree that the welfare of the child is the paramount consideration in deciding whether a child's name should be changed over the opposition of one parent. See, e.g. , Robinson v. Hansel , 302 Minn. 34, 223 N.W.2d 138 (1974). In determining whether a name change will promote the child's best interests, significant consideration is given to the father's interest in having his child bear the paternal surname in accordance with tradition. See Laks , 540 P.2d at 1277. Upholding the tradition of having a child bear the paternal surname promotes the child's welfare not only in a legal and pragmatic way but also in a more subtle, but equally important fashion: retention of the paternal surname strengthens the father-child relationship. See id. In Robinson , the court explained that
(s)ociety has a strong interest in the preservation of the parental relationship. Even though a divorce decree may terminate a marriage, courts have traditionally tried to maintain and encourage continuing parental relationships. The link between a father and child in circumstances such as these is uncertain at best, and a change of name could further weaken, if not sever, such a bond.
Robinson , 223 N.W.2d at 140. This is not to suggest that a mother has no interest in her child's name. The court in Laks , in discussing the nature of that interest, found merit in the following contention by mother:
Appellant claims that the custom of using father's surname was a result of the subservience of women in society; the inequality of the sexes. Thus, she maintains, elimination of the inequality between the sexes gives her an interest
equal to that of the father and to recognize only the interest of the father is an impermissible classification based on sex ... Therefore, she argues, the name ‘Eliot-Laks’ is an appropriate recognition of the interest of both parents in a child's name.
Laks , 540 P.2d at 1280. Nevertheless, the court, emphasizing that the case involved a change of name rather than the initial naming of a child, found that retention of the paternal surname would promote the best interest of the child. Id.
[33] Here, the record reflects that during the marriage Mother had taken Father's surname. The Child was born after the divorce proceedings had been instituted but before they were concluded and at the time of his birth, Mother was still addressed by Father's surname. Although Father was present in the hospital when the Child was born, the birth certificate was completed by Mother, giving the Child her maiden name as his surname without Father's input and thereby removing all connection to Father's family. During the dissolution proceedings, Father exercised parenting time and by the time of the dissolution hearing, Father was caught up on his support obligation. Father actively sought and maintained a relationship with his minor Child and shares joint legal custody with Mother.
Mother had her maiden name restored in the current proceedings.
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[34] I acknowledge that there has been a change in modern attitudes and practices regarding the surname of children born in and out of wedlock. Thus, I do not suggest, as was considered in Laks , that predominant consideration should be given to a father's interest in preserving the family name through his child, nor do I suggest that a traditional right exists for a child to bear his or her father's surname. However, in light of the specific circumstances of this case, I cannot conclude that it would be in the Child's best interest to be given a hyphenated family name. During his life, no siblings will ever share his last name, nor will his parents or any older relative have the same last name. Accordingly, based on the evidence before us, I find that the trial court abused its discretion by hyphenating the Child's surname.