Opinion
21A-DN-2599
05-23-2022
Dusty Krisher, Appellant-Respondent, v. Andrew Krisher, Appellee-Petitioner .
ATTORNEY FOR APPELLANT Mark S. Fryman, Jr. Starr Austen & Miller, LLP Logansport, Indiana ATTORNEY FOR APPELLEE Justin K. Clouser Bolinger Law Firm Kokomo, Indiana
Pursuant to Ind. Appellate Rule 65(D), this 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.
Appeal from the Miami Superior Court The Honorable J. David Grund, Judge Trial Court Cause No. 52D01-1704-DN-112
ATTORNEY FOR APPELLANT
Mark S. Fryman, Jr.
Starr Austen & Miller, LLP
Logansport, Indiana
ATTORNEY FOR APPELLEE
Justin K. Clouser
Bolinger Law Firm
Kokomo, Indiana
MEMORANDUM DECISION
Bradford, Chief Judge.
Case Summary
Dusty Krisher ("Mother") and Andrew Krisher ("Father") were married in October of 2009. L.K. was the only child born during the marriage. Though both Mother and Father knew that L.K. was not Father's biological child, Father raised L.K. as his own. On April 20, 2017, Father filed for dissolution of marriage, claiming that there were no children from the marriage. On March 26, 2019, Father filed a petition for DNA testing, which petition the trial court granted. On May 19, 2020, Mother filed a motion to set aside an order on DNA paternity testing, an objection to the admissibility of the results of the paternity test, and a request for child support. On December 11, 2020, the trial court found that Father was equitably estopped from rebutting the presumption that he was L.K.'s Father and ultimately ordered that he pay child support retroactive to the date of that finding. Mother appeals, arguing that the trial court abused its discretion by failing to retroactively apply child support to the date of the petition for dissolution. Because the trial court had discretion to not retroactively apply child support to the date of filing, we affirm.
Facts and Procedural History
Mother and Father were married in October of 2009. L.K., the only child born by Mother during the marriage, was born on July 16, 2012. Though both Mother and Father knew that L.K. was not Father's biological child, Father told Mother not to seek a paternity test and that he would raise L.K. as his own. Father placed his own name on the L.K.'s birth certificate, listed himself as L.K.'s father at school, and held himself out as L.K.'s biological father to his own family.
[¶3] On April 20, 2017, Father filed for dissolution of marriage and alleged that he and Mother had no children together. Following a provisional hearing, Father was ordered to pay Mother $600.00 a month for spousal maintenance and rent. The trial court also ordered that "all other issues not addressed by this agreement are reserved for the final hearing." Appellant's App. Vol. II p. 199.
[¶4] On March 26, 2019, Father filed a petition for DNA testing. The trial court granted Father's petition on June 3, 2019, ordering Father and L.K. to submit to DNA testing within thirty days. On May 19, 2020, Mother filed a motion to set aside the order on DNA paternity testing, an objection to the admissibility of the results of the paternity test, and a request for child support. On December 11, 2020, the trial court found that Father was equitably estopped from rebutting the presumption that L.K. was his child for purposes of child support. The trial court ultimately ordered the following:
Though the trial court made this finding on December 11, 2020, and eventually retroactively applied child support back to that date, the chronological case summary listed the order as having been filed on December 18, 2020. This discrepancy seems to have resulted in some confusion. Both Mother and Father suggest in their briefs that the trial court retroactively applied child support to December 18, 2020, rather than December 11, 2020. The record reveals that during litigation the parties understood that the trial court had retroactively applied child support to December 11. See Ex. 3, Appellant's App. Vol. II p. 194. Despite any misunderstanding by the parties, any references to December 18, 2020, by the trial court refer to the date of the estoppel-finding's filing and are not suggestions that child support retroactively applies to that date. The trial court's order unambiguously applied child support retroactive to December 11, 2020, the date of the estoppel finding. Therefore, we will address the parties' arguments under the assumption that they intended to refer to December 11, 2020, as the date to which child support was retroactively applied.
[Father] shall pay child support to [Mother] in the amount of $188.00 per week beginning December 11, 2020. That being the date the Court established that [Father] was estopped from declaring the parties' minor child not his child for purposes of support. The Court finds a child support arrearage exists in the amount of $5,828.00 as of July 16, 2021. [Father] shall pay an additional $22.00 per week in support until such time as the arrearage is fully satisfied. This as detailed on Exhibits 2 and 3 attached hereto and made a part hereof. Any medical, dental, optical, orthodontia, pharmaceutical, or psychological expenses of the children not covered by insurance or public benefit shall be paid by the parties, with the [Father] to pay 65% and [Mother] to pay 35% of said expenses, after [Mother] pays the first $514.80 of annual aggregate expenses.Appellant's App. Vol. II pp. 184-85.
[¶5] Mother filed a motion to correct error, arguing that the trial court erred in determining that Father was only liable for child support retroactive to the trial court's equitable estoppel finding, December 11, 2020, and not the date of the petition for dissolution, April 20, 2017. The trial court denied that motion stating:
1. This cause of action was initially filed as a "DN" (Dissolution No Children) cause number on April 20, 2017.
2. Parties appeared with counsel on June 28, 2017 for provisional hearing and entered into an agreement containing nothing about child support. The Provisional Order did order $600.00 in maintenance.
3. The parties litigated Father's ability to contest their child's paternity and the Court found him to be estopped from doing so pursuant to the Court's Order of December 18, 2020.
Based upon the aforementioned findings the Court now denies Respondent's Motion to Correct Errors. Appellant's App. Vol. II p. 197.
Discussion and Decision
[¶6] "Decisions regarding child support rest within the sound discretion of the trial court." Haley v. Haley, 771 N.E.2d 743, 752 (Ind.Ct.App. 2002) (citing Beehler v. Beehler, 693 N.E.2d 638, 640 (Ind.Ct.App. 1998)). "We will reverse only for an abuse of discretion or if the trial court's determination is contrary to law." Id. "An abuse of discretion occurs when a trial court's decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law." Mitten v. Mitten, 44 N.E.3d 695, 698 (Ind.Ct.App. 2015).
[¶7] Mother argues that the trial court abused its discretion by ordering Father to pay child support retroactive to December 11, 2020, the date the trial court found that Father was equitably estopped from rebutting the presumption that L.K. was not his child, rather than April 20, 2017, the date Father filed the petition for dissolution. Father does not appeal the trial court's finding that he was equitably estopped from contesting paternity, so we are left to determine whether the trial court abused its discretion in picking a date for the retroactive application of child support.
[¶8] Mother cites to several cases to support her contention that it was an abuse of discretion for the trial court to retroactively apply child support to any date later than April 20, 2017, the date of the petition for dissolution. For instance, Mother cites to Sheetz v. Sheetz, 63 N.E.3d 1077 (Ind.Ct.App. 2016), in which another panel of this court affirmed the trial court's finding that the father was equitably estopped from rebutting the presumption that a child was his and subsequently ordered him to continue paying child support. Again, Father does not contest the trial court's finding that he was equitably estopped from contesting the presumption that L.K. is his child. Sheetz addresses a father being equitably estopped from contesting paternity, but does not address retroactively applying child support in such a situation. Similarly, the other cases to which Mother cites do not establish that a trial court is obligated to retroactively apply child support to the date of the petition for dissolution, only that they may choose to do so. See Mitten, 44 N.E.3d at 704, Carmer v. Carmer, 45 N.E.3d 512, 518 (Ind.Ct.App. 2015), Bill v. Bill, 155 Ind.App. 65, 75, 290 N.E.2d 749, 755 (Ind.Ct.App. 1972). The trial court did not abuse its discretion, as "[i]t is well within a trial court's discretion to retroactively apply a child support award back to the date of filing or any date thereafter." Carmer, 45 N.E.3d at 518.
[¶9] Mother also argues that the trial court impermissibly found that she had waived child support and that there was no logical explanation provided as to why the trial court denied her motion to correct error. The trial court explained its decision in denying Mother's motion to correct error:
1. This cause of action was initially filed as a "DN" (Dissolution No Children) cause number on April 20, 2017.
2. Parties appeared with counsel on June 28, 2017 for provisional hearing and entered into an agreement containing nothing about child support. The Provisional Order did order $600.00 in maintenance.
3. The parties litigated Father's ability to contest their child's paternity and the Court found him to be estopped from doing so pursuant to the Court's Order of December 18, 2020.
Based upon the aforementioned findings the Court now denies Respondent's Motion to Correct Errors.
Appellant's App. Vol. II p. 197. It is true that custodial parents who receive child support funds act as a trustee, and, "may not contract away the benefits of the trust." Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997). However, the trial court made no finding that Mother had waived her right to seek support on behalf of L.K. Instead, the trial court's final dissolution order states "[Father] shall pay child support to [Father] in the amount of $188.00 per week beginning December 11, 2020. That being the date the Court established that [Father] was estopped from declaring the parties' minor child not his child for purposes of support." Appealed Order pp. 7-8. Rather, the trial court's decision to pick December 11, 2020, was logically founded on Father's estoppel, not Mother's waiver, because, before it had found that Father was equitably estopped, Father had been free to contest paternity and was not biologically L.K.'s father. Again, "[i]t is well within a trial court's discretion to retroactively apply a child support award back to the date of filing or any date thereafter." Carmer, 45 N.E.3d at 518 (emphasis added). Mother has failed to establish that the trial court abused its discretion or erred in retroactively applying Father's child support to December 11, 2020.
[¶10] The judgment of the trial court is affirmed.
Najam, J., and Bailey, J., concur.