Opinion
No. 71A03-1011-DR-648
08-17-2011
N.D., Appellant, v. T.D., Appellee.
ATTORNEY FOR APPELLANT : JAMES R. RECKER Indianapolis, Indiana ATTORNEY FOR APPELLEE: ARIC J. RUTKOWSKI Zappia, Zappia & Stipp South Bend, 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.
ATTORNEY FOR APPELLANT:
JAMES R. RECKER
Indianapolis, Indiana
ATTORNEY FOR APPELLEE:
ARIC J. RUTKOWSKI
Zappia, Zappia & Stipp
South Bend, Indiana
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Margot Reagan, Judge
Cause No. 71D04-0902-DR-76
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
N.D. ("Mother") appeals the trial court's dissolution of her marriage to T.D. ("Father"). For our review, Mother raises six issues, which we reorder and restate as: 1) whether the trial court abused its discretion in awarding Father's pension accrued through his employer solely to him; 2) whether the trial court abused its discretion in awarding Father primary physical custody of the parties' son, A.D.; 3) whether the trial court abused its discretion in denying Mother's request for modification of provisional child support; 4) whether the trial court erred in awarding Father a tax exemption for A.D.; 5) whether the trial court abused its discretion in awarding Mother a lower amount of attorney fees than she requested; and 6) whether the trial court displayed bias against Mother amounting to reversible error. Concluding the trial court did not abuse its discretion or commit reversible error as to the issues of custody, provisional child support, the tax exemption, attorney fees, and bias, we affirm the trial court on those issues. As to the remaining issue of the pension, the trial court's findings do not disclose a sufficient basis for us to affirm, and we accordingly remand for further consideration and findings on that issue.
Facts and Procedural History
Mother and Father married in May 2005. They had one child together, their son A.D., born in March 2007. Father has a college degree and has been steadily employed at AM General in South Bend. Mother did not complete college, worked a lower-paying, part-time job after having A.D., and as of 2009 did not work outside the marital home.
On February 5, 2009, Father filed for dissolution in St. Joseph Superior Court. Father also filed a verified petition for provisional relief, requesting temporary physical custody of A.D. Mother filed a verified counter-petition, stating she left St. Joseph County with A.D. to live with her mother in Indianapolis and was residing there to provide full-time care to A.D. Mother requested that physical custody of A.D. be awarded to her, along with "immediate temporary maintenance during the pendency of this proceeding" and provisional child support. Amended Appellant's Appendix at 12.
In March 2009, the trial court issued an order granting Father scheduled "parenting time" with A.D. but making no formal ruling on Father's or Mother's requests for physical custody. Id. at 14. As part of that order, the trial court required Father to provide all transportation of A.D. to and from Mother's residence in Indianapolis, and ordered the issues of custody, parenting time, and child support submitted to mediation. On April 23, 2009, the trial court adopted the parties' mediated agreement, which scheduled Father's parenting time and required Father to pay child support of $190 per week starting April 24, 2009. The agreement also required that Father "continue to make the payment due on the Hummer vehicle in Mother's possession" and that Father "pay to Mother by April 24, 2009 the sum of $3,265.00 representing one half the parties' 2008 tax refund." Id. at 15. In September 2009, the trial court appointed a guardian at litem ("GAL") and ordered the GAL to prepare a custody evaluation and report.
On January 27, 2010, Mother filed, in Marion Superior Court, a petition for an ex parte order for protection against Father. The Marion Superior Court granted the protective order, which expired on February 2, 2010.
On February 12, 2010, the trial court held a telephonic status conference requested by Father's counsel and agreed to by Mother's counsel. After Mother's counsel argued Father had violated the ex parte protective order, the following exchange occurred:
The Court: Wait, wait, wait, wait, wait, wait. First of all, Mr. Recker, can you hear me?Transcript at 38-43.
Mr. Recker [counsel for Mother]: Yes, your Honor.
The Court: I don't understand why there was a Petition for Protective Order filed in Indianapolis. Is that where she lives?
Mr. Recker: Yes, your Honor.
The Court: Were you involved in this?
Mr. Recker: Yes, your Honor.
The Court: So you instructed her do to that?
Mr. Recker: She was afraid to meet him on Friday for an exchange with the child. . . . The acts have occurred in Marion County, so it was filed with Marion County.
The Court: First of all, and maybe I'm missing some of this, but the copy that I have doesn't have any allegations that would justify this Protective Order. Mr. Zappia [counsel for Father]: That's what my argument is. . . . I mean the Court needs more facts.
The Court: Oh, I agree. I never would have granted this myself. I don't understand why it was granted. I don't understand how this even came up all of the sudden. The only allegation on that Protective Order is that he made some threat on December 18th, and then suddenly right before he comes to get the child there's a Protective Order needed.
Mr. Zappia: Right.
The Court: I mean it doesn't make any sense and I'm upset about this. This shouldn't happen again. This is, it seems to me, just the Wife's attempt to keep the Father from having visitation.
And, Mr. Recker, you know this isn't the right way to do it. There should have been a petition. There should have been a hearing. I'm not addressing the Rule to Show Cause right now, but we're having a hearing on the 19th, and I think she needs to be here, too.
* * *
The Court: Well, that's the way it is. This is ridiculous. I'm not saying who's at fault because I don't know, but I do know that she's not doing things the way she's supposed to do them and she has to do them legally the right way and this is wrong. And she can't keep filing Protective Orders down in Indianapolis.
Mr. Recker: It's a Protective Order issued by a Judge in Marion Superior Court.
The Court: Well, it wasn't even justified.
* * *
Mr. Recker: I would just say this in response. First of all, the Protective Order was properly applied for as far as I'm concerned, as far as the Judge in Indianapolis was concerned, so she has followed the procedure. . . .
And, you know, we clearly listed the pending case in St. Joseph County Court in the [Marion] Superior Court, so the Court was aware of everything. They reviewed it and found it substantiated. So I guess I'm disturbed that you're saying that she did something wrong. I don't see that.
The Court: Well, especially with her attorney's approval. I can't believe you would do it this way.
First of all, the allegations in the petition, I mean they're ridiculous. There are things that supposedly happened, some of them a long time ago. There's one threat that supposedly happened on December 18th, and all of the sudden she needs an emergency Ex Parte Protective Order. That seems to be abuse of using the Protective Order procedure.
* * *
Mr. Zappia: Let me ask you this, [Mr. Recker]. What threat is there? All I see is threat to do physical harm. What was the threat?
Mr. Recker: Well, I think we can determine that at a hearing.
Mr. Zappia: It should be in the petition.
The Court: Yeah, that should be. It should be. It wasn't explained at all.
Mr. Recker: I'm sorry?
The Court: It wasn't explained at all. You can't just put there was a threat.
* * *
Mr. Recker: The prosecutor put this on a charging information. If you put this before Child Protective Services it would be investigated.
Mr. Zappia: I disagree.
The Court: I disagree, too. Mr. Zappia, I agree with you.
Mr. Zappia: Judge, I'm sorry?
The Court: I agree with you. This whole thing has gotten me very angry. I think, as I said, it was an abuse of the process. And we'll address this at the hearing on the 19th.
On February 19, 2010, Mother filed a verified motion for change of judge, arguing the trial judge displayed bias against Mother during the February 12 telephonic conference. Mother claimed the judge's comments amounted to "derogatory statements about [Mother]" impugning her motives for obtaining a protective order, and contended the judge improperly "joined with opposing counsel" in trivializing and collaterally attacking the lawful Marion Superior Court order. App. at 55-56.
Also on February 19, 2010, the trial court held a hearing on two rule to show cause motions filed by Father and considered Mother's motion for change of judge. At the hearing, the trial court verbally indicated the motion for change of judge would be granted. However, in a written order issued later that same day, the trial court sua sponte reconsidered that decision and ruled:
[T]here has not been a showing of bias. No "derogatory" statements have been made about [Mother]. The telephonic hearing referred to in the motion, to which [Mother] agreed, was recorded. A transcript of that hearing would show that the court's ruling was not biased but was unfavorable to [Mother] for the reasons articulated. Pursuant to Indiana T.R. 76(C)(6), the motion was untimely and no showing of bias was made.Id. at 58.
In April 2010, the GAL filed her report and recommendation concerning custody. A.D. was described as "very active, highly verbal, curious and bright, an independent toddler," "energetic, and a little boisterous." Id. at 63. The GAL opined that "each parent offers to [A.D.] something this child needs," and while each criticizes the other's parenting, "neither parent exerts their particular influence over [A.D.] in a harmful way." Id. at 64. The GAL added that "[b]oth parents appear to encourage [A.D.]'s intellectual curiosity and facility for learning. Both appear loving and well bonded to [A.D.], and he reciprocates their love and affection." Id. at 65. The GAL further observed that Father "appears to be healthy, successful, and very competent in all he does," and that Mother, despite a history of emotional problems and prescription drug dependency, had a good prognosis for "improvement and relative stability of Mother in the future." Id. The GAL concluded this was a "challeng[ing]" case for evaluating custody, and that if the distance between Father's residence in Mishawaka and Mother's in Indianapolis were not a factor, shared physical custody would be appropriate. Id. at 66-67. Ultimately, the GAL recommended that Mother have primary physical custody and Father have parenting time of eight to ten days per month.
On May 17, 2010, Mother filed a Petition to Modify Child Support Obligation pursuant to Indiana Code section 31-16-8-1. Mother requested that Father's child support be increased to $270 per week based upon an increase in Father's income. Mother also argued A.D. "is entitled to back [child] support" for the period of April 17 through December 31, 2009, as a result of Father allegedly underreporting his 2009 income at the April 17, 2009 mediation. Id. at 73. The trial court did not rule on Mother's petition to modify child support.
On August 24 and 25, 2010, a final evidentiary hearing was held on Father's petition for dissolution. No request for findings and conclusions was made prior to the admission of evidence, but at the close of the hearing both counsel indicated their intention to submit proposed findings and conclusions.
The trial court took the case under advisement and, on October 15, 2010, issued its findings of fact, conclusions of law, and decree, providing in relevant part:
6. The parties are the owners of a residence . . . [in] Mishawaka, Indiana. The parties agree that its fair market value is One Hundred and Thirty Thousand and 00/100 Dollars ($130,000.00), and that there is a mortgage on the property of One Hundred Twenty-three Thousand Two Hundred Ninety-two and 00/100 Dollars ($123,292.00). * * * 10. That Father has an AM General Capital Accumulation Plan with a value of Nineteen Thousand and 00/100 Dollars ($19,000.00). 11. That Father also has a vested AM General Pension Plan with a monthly benefit of Three Hundred Six and 84/100 Dollars ($306.84). However, the marital portion of that monthly benefit is Two Hundred Two and 51/100 Dollars ($202.51). The present value of Mother's one-half (1/2) interest in the plan is Five Thousand Three Hundred Nineteen and 00/100 Dollars ($5,319.00). * * * 16. That Mother currently has the temporary physical care, charge and custody of the parties' minor child, [A.D.]. [A.D.] has resided primarily with the Mother in Indianapolis, Indiana since January 2009. * * * 19. That Father has indicated that he would take [A.D.] to the East Bank Learning Center on his way to work, and that [A.D.] would spend the day at East Bank Learning Center until Father leaves work at approximately 4:00 p.m. Father believes it is in [A.D.]'s best interest to have the structure of the East Bank Learning Center and also to socialize with other children of his age during the day. Father believes that [A.D.] will also have an appropriate amount of time to be with his mother, pursuant to his proposal for parenting time.App. at 77-85 (emphases in original). Thus, the trial court granted the parties joint legal custody of A.D. but granted Father primary physical custody. On November 13, 2010, Mother filed her notice of appeal.
CONCLUSIONS OF LAW
20. The Court concludes that the following division of property is fair and equitable, pursuant to the parties' agreement of a fifty/fifty (50/50) division of assets and liabilities: Petitioner/Father's Assets+----------------------------------------------------+ ¦Real Estate ¦$130,000.00 ¦ +--------------------------------------+-------------¦ ¦National City Bank Account ¦$841.00 ¦ +--------------------------------------+-------------¦ ¦Teacher's Credit Union Account ¦$1,203.00 ¦ +--------------------------------------+-------------¦ ¦AM General Capital Accumulation Plan ¦$10,346.00 ¦ +--------------------------------------+-------------¦ ¦2006 Hummer H3 ¦$16,800.00 ¦ +--------------------------------------+-------------¦ ¦Amount of Petitioner/Father's Assets ¦$159,190.00 ¦ +----------------------------------------------------+ Petitioner/Father's Liabilities+---------------------------------------------------------+ ¦Mortgage ¦$123,292.00 ¦ +-------------------------------------------+-------------¦ ¦2006 Hummer H3 Loan ¦$14,000.00 ¦ +-------------------------------------------+-------------¦ ¦Capital One Credit Card ¦$7,911.00 ¦ +-------------------------------------------+-------------¦ ¦Amount of Petitioner/Father's Liabilities ¦$145,203.00 ¦ +-------------------------------------------+-------------¦ ¦Net Amount of Petitioner/Father's Assets ¦$13,987.00 ¦ +---------------------------------------------------------+ Respondent/Mother's Assets+------------------------------------------------------+ ¦National City Bank Account ¦ ¦ ¦ ¦$108.00 $8,654.00¦ ¦AM General Capital Accumulation Plan¦ ¦ +------------------------------------+-----------------¦ ¦2004 Grand Prix ¦$5,225.00 ¦ +------------------------------------+-----------------¦ ¦Respondent/Mother's Net Assets ¦$13,987.00 ¦ +------------------------------------------------------+ 21. The Court concludes that it is in the parties' best interest for the Mother to have the 2004 Grand Prix vehicle, as it is in good running condition and it is fully paid off. The Father should have the 2006 Hummer H3, as he is in a better position to pay the loan on the vehicle. 22. Based upon all the evidence and factors to be considered in IC § 31-17-2-8, this court has determined that, given the following factors, that Father should be granted primary physical custody in the best interest of the child,[A.D.]:a) Mother has a serious history of substance abuse. There was not sufficient proof that Mother has completely resolved issues regarding her addiction to prescription drugs.
b) Anxiety issues seem to have dominated her behavior and decisions and she has been diagnosed with "Anxiety Not Otherwise Specified". The totality of the evidence shows that Mother is emotionally unstable at this time.
c) She continuously referred to [A.D.] as "her" son while Father referred to him as "our" son. This enforced [sic] much of the other testimony that showed that she is possessive of [A.D.] which indicated some questionable aspects of her parenting ideas.
d) There have been several situations when she has refused Father's parenting time. She has now claimed that she was "confused" about the parenting time order but the testimony indicated that she was not confused, but chose to disregard the court order. On one occasion, she even filed a baseless emergency ex parte protective order (in spite of the fact that Father was represented by counsel) in an Indianapolis court, which was granted. Unaware of the Protective Order, Father drove to Indianapolis for his parenting time and was prevented from taking [A.D.] in spite of the fact that (1) the only allegations were "abuse of animals" (never proven) and "rape" which turned out to be two incidents, which did not involve Father at all and (2) the protective order specifically did not give Mother the right to interfere with Father's parenting time.e) Although the [GAL] recommended physical custody to Mother, the GAL only observed Mother with [A.D.] in an isolated session in a public library setting and did not hear any of the testimony at the trial. Even so, the GAL would have recommended joint physical custody if the parents had lived closer to each other. . . .
f) The court was impressed with Father's day care plan for [A.D.] which is in the best interests of [A.D.] for social interaction and learning and play activities. This three and one-half year old male child is very bright, very active, highly verbal and curious. He prefers playing with children older than he. . . .
23. The Mother should have Parenting Time on alternate weekends . . . .
* * *
25. Although Mother should pay child support to Father, due to the disparity in the incomes of the parties the Father shall pay the sum of $40.00 per week with the first payment being due October 22, 2010.
26. The Court also concludes that the Father should keep as his sole and separate property his interest in the AM General Pension Plan due to the various obligations Father has paid during the pendency of this matter.
* * *
33. Father shall claim [A.D.] each and every year as a dependant for State and Federal Income tax purposes.
* * *
37. Father will pay Mother's reasonable attorney fees. Counsel for Mother is to submit an affidavit of expenses for the Court's approval.
On February 10, 2011, Mother filed her affidavit of counsel requesting attorney fees and costs of $16,451.98. Mother's counsel is based in Indianapolis. Attached to the affidavit was counsel's timesheet, which included travel to and from South Bend billed at counsel's standard hourly rate as well as mileage and parking expenses. The timesheet also included time spent preparing and costs incurred for filing Mother's notice of appeal. On March 1, 2011, the trial court issued its order finding that reasonable attorney fees in this case were $8,644.68, an amount computed by subtracting the costs of mileage, travel, and all charges for preparing and filing the notice of appeal.
Discussion and Decision
I. Standard of Review
When, as here, the trial court issues findings of fact and conclusions of law upon the parties' verbal request at the hearing, but no written request is filed pursuant to Indiana Trial Rule 52, we review the findings and conclusions as if issued sua sponte. Leever v. Leever, 919 N.E.2d 118, 122 (Ind. Ct. App. 2009). Accordingly, the specific findings control only as to the issues they cover. Id. A general judgment standard applies to any issue upon which the trial court has not made findings, whereby the trial court may be affirmed upon any legal theory supported by the evidence. Id. To the extent special findings control, they must be "sufficient to disclose a valid basis under the issues for the legal result reached in the judgment." Maxwell v. Maxwell, 850 N.E.2d 969, 972 (Ind. Ct. App. 2006) (quotation omitted), trans. denied.
The trial court's findings and judgment may not be set aside unless they are clearly erroneous. T.R. 52(A). We first determine whether the evidence supports the findings and then whether the findings support the judgment. Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind. Ct. App. 1997). We consider only the evidence most favorable to the judgment and the reasonable inferences therefrom, and we neither reweigh the evidence nor assess the credibility of witnesses. Id. However, we do not defer to a trial court's conclusions of law, and a judgment is clearly erroneous if it relies upon an incorrect legal standard. Bandini v. Bandini, 935 N.E.2d 253, 258 (Ind. Ct. App. 2010).
II. Pension
Upon dissolution of marriage, the trial court shall divide the property of the parties, whether (1) owned by either spouse before the marriage; (2) acquired by either spouse in his or her own right, after the marriage and before final separation of the parties; or (3) acquired by the parties' joint efforts. Ind. Code § 31-15-7-4(a). The trial court shall presume that an equal division of the marital property is just and reasonable. Ind. Code § 31-15-7-5. However, this presumption may be rebutted by a party who presents relevant evidence that an equal division would not be just and reasonable. Id. If the trial court deviates from the presumption of equal division, it must state why it did so. Thompson v. Thompson, 811 N.E.2d 888, 912-13 (Ind. Ct. App. 2004), trans. denied. A party who challenges the trial court's property division must overcome a strong presumption, on appeal, that the court considered and complied with the applicable statute. Galloway v. Galloway, 855 N.E.2d 302, 304 (Ind. Ct. App. 2006). 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.
Mother argues the trial court erred in awarding solely to Father his AM General Pension Plan because of credit for certain obligations paid by Father but unspecified in the trial court's order. Mother asserts the only expenses Father paid were court-ordered or routine, de minimus expenses that do not entitle him to credit. Father replies that the trial court may have based its decision on evidence that during the pendency of the dissolution, he paid over $27,000 toward Mother's expenses above and beyond his child support obligation.
In addressing this issue, we observe that the AM General Pension Plan is referenced as a marital asset in the trial court's finding of fact number 11, where the trial court states the present value of Mother's one-half interest in the Pension is $5,319. However, in the trial court's conclusion of law number 20, it does not include the value of the Pension in the schedule of assets and liabilities that equate to a "fifty/fifty" division. App. at 80. While it appears the trial court intended to set aside to Mother her one-half interest in the Pension, the trial court did not indicate how it was to be paid to Mother, other than to state in conclusion number 26 that Father was given credit for "various obligations Father has paid during the pendency of this matter." Id. at 83.
In these circumstances, we must remand this issue to the trial court for further consideration and findings. Because the issue of property division was covered by the trial court's findings and conclusions, we cannot affirm based on a general judgment standard. However, neither do we reverse the trial court's decision, because there was evidence that could have supported it. Father presented evidence that during the pendency of the dissolution, he paid certain sums to cover some of Mother's expenses. Specifically, Father's Exhibit 10 represented that Father paid Mother over $10,000 in cash, in various installments, after the petition for dissolution was filed and through May 2009, over and above his child support payments. Father's payments exceeded the $3,265 that Father was ordered, pursuant to the April 2009 mediated agreement, to transfer to Mother as her share of their 2008 tax refund. Father's exhibit also represented that he paid some of Mother's medical expenses and cellular phone bills during the pendency of the dissolution. The trial court could have taken the above payments by Father into consideration in the division of property upon dissolution. We have previously held that in dividing marital property, a court may consider temporary maintenance and joint marital debts paid by one spouse under a provisional order while the dissolution is pending, though the same is not true for child support. Maloblocki v. Maloblocki, 646 N.E.2d 358, 363 (Ind. Ct. App. 1995).
However, we disagree with Father's suggestion that the trial court could have considered payments Father made toward the loan on the Hummer vehicle and toward Father's Capital One credit card while the dissolution was pending. The trial court's dissolution decree awarded both of those debts to Father, so simultaneously crediting them toward the marital portion of the Pension would likely have amounted to double-counting, certainly with respect to the credit card because the trial court assigned the value of that debt as of the date Father filed for dissolution.
The parties do not address whether the trial court's ability to take such payments into consideration was limited by Father's ongoing duty of spousal support while the dissolution was pending. See Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 9 (Ind. 1993) ("As a general rule, the duty of spousal support continues at least until the marital relationship is dissolved."); Ind. Code § 31-15-4-1(a) (providing for motions for temporary maintenance during pendency of dissolution). Mother requested, but the trial court did not order, Father to pay temporary maintenance during the pendency of their dissolution.
The trial court's findings and conclusions do not make clear which, if any, substantial payments by Father toward marital expenses during the provisional period - as opposed to de minimus, court-ordered expenses - it intended to treat as equivalent to Mother's receipt of her portion of the Pension. Conclusion number 26 refers only to unspecified "obligations," App. at 83, which is insufficient to inform us or the parties which expenses the trial court credited toward Mother's share of the Pension and on what basis. In appellate review of findings and conclusions, while they are construed liberally in support of the judgment, "we may not add anything to the findings of fact by way of presumption, inference, or intendment." Ind. High Sch. Athletic Ass'n v. Shafer, 913 N.E.2d 789, 794 (Ind. Ct. App. 2009). Accordingly, we remand to the trial court for further consideration and findings on this issue, numbered the second issue in Mother's appellate brief. The trial court may, but need not, hold a new hearing on remand.
III. Custody
Mother argues the trial court erred in awarding primary physical custody of A.D. to Father. First, Mother contends the trial court erred in rendering its decision as an initial custody determination instead of applying the more stringent standard for modification of custody, where A.D. previously lived with Mother. Second, Mother argues that even under the initial custody determination standard, the trial court's decision was an abuse of discretion. We address each argument in turn.
A. Appropriate Legal Standard
We addressed an argument similar to Mother's in Kondamuri v. Kondamuri, 852 N.E.2d 939 (Ind. Ct. App. 2006). In that case, the child had lived with the father for three years prior to the dissolution, while the mother lived apart from them in Boston. Upon dissolution, the trial court awarded physical custody to the mother under an initial custody determination standard, and we affirmed. Id. at 945. We observed there was no custody determination prior to the final dissolution decree and no acquiescence by the mother to the father's custody, even though the mother lived apart from the father and child for three years. Id.
This court in Kondamuri distinguished In re Paternity of Winkler, 725 N.E.2d 124 (Ind. Ct. App. 2000). In Winkler, the father acquiesced to the mother's custody of their child for ten years, and the mother had custody by operation of law because the child was born out of wedlock. In those circumstances, we applied the more stringent standard for modification of custody despite the lack of an "initial custody determination." Id. at 128; see id. at 129 (Robb, J., concurring) (emphasizing "only because of the very long acquiescence by the father in which he accepted the mother's custodial status do we apply the stricter standard").
The present case resembles Kondamuri in that there was no determination of custody, by judicial decision or operation of law, until the trial court's final dissolution decree. The trial court made no ruling on Mother's and Father's respective requests for a preliminary award of custody while the dissolution was pending. Although A.D. resided with Mother from early 2009, shortly before Father filed for dissolution, Father did not acquiesce to Mother's custody. Rather, Father petitioned the court for a preliminary award of custody. Thus, unlike in Winkler, there was no long period of acquiescence, and the trial court properly applied the initial custody determination standard.
B. Grant of Custody to Father
Child custody decisions are reviewed for an abuse of discretion, with a "preference for granting latitude and deference to our trial judges in family law matters." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quotation omitted). We will not set aside the judgment unless it is clearly erroneous, we do not reweigh the evidence or assess the credibility of witnesses, and we must view the evidence most favorably to the judgment. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).
In making an initial custody determination, the trial court "shall . . . enter a custody order in accordance with the best interests of the child." Ind. Code § 31-17-2-8.
In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(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) The interaction and interrelationship of the child with:(A) the child's parent or parents;(5) The child's adjustment to the child's:
(B) the child's sibling; and
C) any other person who may significantly affect the child's best interests.(A) home;(6) The mental and physical health of all individuals involved.
(B) school; and
(C) community.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian . . . .
Id.
Mother argues the trial court abused its discretion in awarding primary physical custody to Father because Mother has been A.D.'s primary caregiver since birth, and that the trial court erroneously discounted the GAL's recommendation for Mother to have primary physical custody. However, as the trial court in its findings pointed out, the GAL did not hear the parties' testimony at trial, and the GAL would have recommended joint physical custody if the parties lived near each other. The GAL testified that Father "does a fantastic job" and "parents [A.D.] very well," tr. at 150, and did not opine that Mother was overall a fitter parent. See id. at 153 ("I don't want to say anything that suggests that one parent is far superior. . . . [T]his is a case where both parents are good, loving parents . . . ."). Rather, the GAL based her custody recommendation on the grounds that Mother's personality was a somewhat better match for A.D.'s social and developmental needs at this point in his life, id. at 150 (Mother "brings much more on a daily basis of this sense that you need to be thinking about other people"), and that Mother, since she does not work full-time outside the home, has more time than Father to spend caring for A.D. Such facts as set forth in this paragraph are not alone determinative, given the multi-factored nature of a custody determination under Indiana Code section 31-17-2-8, where a trial court must take into account "all relevant factors."
The trial court's decision invoked the enumerated statutory factor of mental and physical health, noting Mother's "history of substance abuse" and lack of evidence that she has fully resolved her "addiction to prescription drugs." App. at 81. The evidence was conflicting regarding whether Mother's drug usage amounted to abuse or whether she merely experienced severe side effects from validly prescribed medications. We may not reweigh that evidence and judge Mother's credibility on that issue. Even if we could view the evidence most favorably to Mother, it established that, at the least, she continued to experience challenges to her physical and mental health during the pendency of the dissolution, see tr. at 131, such that the GAL recommended ongoing monitoring by a physician in the event she were given primary physical custody. Id. at 151. Father, by contrast, has no mental or physical health issues. The trial court's decision also invoked A.D.'s prospective adjustment to home and community, finding Father's daycare plan would be in A.D.'s "best interests . . . for social interaction and learning and play activities." App. at 82. While Mother offered her own contrary opinion as to what would be the better living environment for A.D., we cannot reweigh that evidence in Mother's favor. For these reasons, the trial court did not abuse its discretion in granting Father primary physical custody.
IV. Modification of Provisional Child Support
In a dissolution proceeding, either party may seek a provisional order for "[t]emporary support . . . of a child of the marriage entitled to support." Ind. Code § 31-15-4-1(a)(2). The trial court granted Mother temporary child support of $190 per week, pursuant to the parties' mediated agreement reached in April 2009. In May 2010, Mother requested an increase in the amount of temporary support and an award of back child support, claiming Father's income had increased and that Father withheld information about the increase when their agreement was mediated.
The trial court never issued a formal ruling on Mother's motion, but we read the trial court's final order of October 15, 2010 as impliedly denying the relief Mother sought. As mentioned, the specific findings and conclusions in the order control only as to the issues they cover. See Leever, 919 N.E.2d at 122; supra Part I. Thus, the lack of a finding or conclusion as to provisional child support does not deprive the judgment of finality or require that Mother's appeal be dismissed as to this issue. Rather, we will review the trial court's implied denial of Mother's motion under a general judgment standard. In general, a trial court's decision on a motion to modify a provisional child support order is reviewed for an abuse of discretion. See Bojrab v. Bojrab, 810 N.E.2d 1008, 1015 (Ind. 2004).
Retroactive modification of child support is generally prohibited, subject to exceptions not applicable here. Becker v. Becker, 902 N.E.2d 818, 820 & n.4 (Ind. 2009). Under this rule, "modification of a support obligation may only relate back to the date the petition to modify was filed." Id. at 820. To the extent Mother requested an award of back child support, her motion was equivalent to a request for retroactive modification. Yet Mother does not argue or cite any authority that a more permissive rule applies to requests for retroactive modification of provisional child support as compared to retroactive modification of child support generally.
Further, the trial court could have properly rejected Mother's argument that Father withheld information about his income. Father testified that at the April 2009 mediation, his provisional child support obligation was computed as follows: Father disclosed that his annual salary then was about $68,000 per year and that he received a profit sharing bonus in March 2009 of approximately $11,230. Two child support worksheets were drawn up, one predicated on Father's base salary, yielding a recommended obligation of $156 per week, and another incorporating his profit sharing bonus, yielding a recommendation of $208 per week. The parties compromised and agreed on provisional support of $190 per week. Tr. at 266. While Father received another, larger, profit sharing bonus in December 2009, he testified that he did not get profit sharing bonuses every year and that their amount fluctuated widely. Viewing the evidence most favorably to the judgment, Father disclosed his full earnings, to the extent he knew what they would be, when the parties reached their mediated agreement. Thus, the trial court did not abuse its discretion to the extent it denied Mother's request for a retroactive increase in Father's provisional child support obligation.
To the extent Mother argues the trial court abused its discretion by denying an increase in provisional child support going forward, for the period between the date of Mother's motion and the final dissolution decree, we disagree. The record indicates that in October 2009, Father's base salary increased to $73,550 per year. However, not every increase in parental income requires an increase in child support. Mother's motion to increase provisional support cited Indiana Code section 31-16-8-1, which provides:
modification may be made only:Ind. Code § 31-16-8-1(b).
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would b
ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was
filed.
Mother did not and does not argue Father's salary increase was a change in circumstances so substantial and continuing as to make the existing terms unreasonable. To her May 2010 motion, Mother did attach a child support worksheet indicating Father's recommended support obligation under the Guidelines would be $270 per week using Father's gross income from 2009, which his W-2 showed was $102,045. $270 per week would be over twenty percent more than Father's existing obligation of $190. However, as implied by the facts discussed above, the vast majority of that difference was due to the profit sharing bonuses Father received in 2009, not the approximately $5,550 increase in his annual base salary. At the August 2010 hearing, no evidence was presented that Father had received or would receive a profit sharing bonus in 2010. Rather, Father testified regarding profit sharing bonuses that "[w]e're not expected to have anything this year." Tr. at 263. Because there was no indication Father's total income in 2010 would be close to what it was in 2009, the trial court did not abuse its discretion by declining to increase Father's provisional child support.
V. Tax Exemption
Mother contends the trial court erred when it awarded Father a tax exemption for A.D. for the year 2010. As Father points out, Mother did not raise before the trial court the issue of who could or would claim the 2010 tax exemption. As such, this issue is waived for our review. See GKC Ind. Theatres, Inc. v. Elk Retail Investors, LLC, 764 N.E.2d 647, 652 (Ind. Ct. App. 2002) ("A party generally waives appellate review of an issue or argument unless the party raised that issue or argument before the trial court.").
Waiver notwithstanding, we find no error. Mother argues that because A.D. resided with Mother in the maternal grandmother's home in 2010 up until the trial court's October 15, 2010 order, Internal Revenue Service regulations entitle Mother or grandmother to the exemption. In support, Mother cites Internal Revenue Service Publication 504 (2010), which states that for a child to be a "qualifying child" entitling a parent to an exemption, the child "must have lived with you for more than half of the year." Id. at 8. The publication explains that "[i]n most cases, because of the residency test . . . a child of divorced or separated parents is the qualifying child of the custodial parent." Id. at 9. However, there is a "special rule" for divorced or separated parents, whereby a noncustodial parent may claim the exemption under certain conditions. Id. If other conditions, not at issue here, are met and "[t]he custodial parent signs a written declaration . . . that he or she will not claim the child as a dependent for the year, and the non-custodial parent attaches this written declaration to his or her return," then the non-custodial parent may claim the exemption. Id. As this court has previously explained:
Federal law grants a dependency exemption to the custodial parent, but allows that parent to execute a written waiver of that exemption. See 26 U.S.C. § 152(e). Indiana courts have held that "[i]n a proper case, the trial court may order the custodial parent to sign a waiver of the presumed right to claim the child as a dependent for federal income tax purposes." Skinner v. Skinner, 644 N.E.2d 141, 149 (Ind. Ct. App. 1994).Carpenter v. Carpenter, 891 N.E.2d 587, 596 (Ind. Ct. App. 2008).
Here, the trial court's decree provided that "Father shall claim [A.D.] each and every year as a dependant for State and Federal Income tax purposes" and "[b]oth parties shall execute any and all documents necessary to effectuate the terms of this Decree." App. at 85. As the decree was entered before the end of 2010, it applied to the 2010 tax year and is logically read as requiring Mother to execute the written waiver referred to in 26 U.S.C. section 152(e) and IRS Publication 504. That waiver in turn allows Father to claim an exemption for A.D. even though A.D. lived with Father for less than half the year 2010. Thus, the exemption does not automatically belong to Mother or the maternal grandmother, and the trial court did not err.
VI. Attorney Fees
Mother contends the trial court erred when it denied her request to be awarded the full amount of her attorney fees and instead deducted the amounts counsel billed for travel between Indianapolis and South Bend and for filing a notice of appeal. By statute, a trial court "may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding" for dissolution of marriage, including attorney fees. Ind. Code § 31-15-10-1(a). "When awarding attorney fees, the trial court must consider the resources of the parties, their economic conditions, the ability of the parties to engage in gainful employment, to earn adequate income, and other factors that are pertinent to the reasonableness of the award." Kondamuri, 852 N.E.2d at 953 (quotation omitted). A trial court "enjoys broad discretion in assessing attorney fees in dissolution cases." Goodman v. Goodman, 754 N.E.2d 595, 602 (Ind. Ct. App. 2001). The trial court's decision to award attorney fees, as well as the amount awarded, is reviewed for an abuse of that discretion. Allen v. Proksch, 832 N.E.2d 1080, 1102 (Ind. Ct. App. 2005).
While Mother frames the issue as whether the trial court "erred in reducing the award of attorney's fees from that submitted by counsel for Mother," Amended Appellant's Brief at 24, the trial court issued only one order deciding the amount, so it was not a reduced award. The trial court was not obligated to order payment of Mother's entire attorney fees; rather, it had discretion to determine the reasonable amount. See Ind. Code § 31-15-10-1(a); Goodman, 754 N.E.2d at 602. The trial court implicitly determined it was not reasonable for Father to pay the increase in Mother's attorney fees that resulted from her move to Indianapolis, her decision to retain counsel in Indianapolis as opposed to the South Bend area, and her decision to appeal. During the pendency of the dissolution, Father paid all the travel costs from his driving between Mishawaka and Indianapolis for parenting time - thus already bearing a significant portion of the expenses resulting from Mother's move. While Mother asserts in her appellate brief that she was unable to find counsel in the South Bend area, she does not support that assertion with any citation to the record. For these reasons, we conclude the trial court did not abuse its discretion in determining the reasonable amount of Mother's attorney fees.
VII. Judicial Bias
Mother argues the trial judge displayed personal bias against her and erred in denying her motion for change of judge. A judge is presumed to be unbiased. Dan Cristiani Excavating Co., Inc. v. Money, 941 N.E.2d 1072, 1082 (Ind. Ct. App. 2011), trans. dismissed. "To overcome this presumption, the party seeking to disqualify a judge must establish actual personal bias." Moore v. Liggins, 685 N.E.2d 57, 63 (Ind. Ct. App. 1997). That is, a party "must show that the trial judge's action and demeanor crossed the barrier of impartiality and prejudiced the [party]'s case." Flowers v. State, 738 N.E.2d 1051, 1061 (Ind. 2000).
Initially we must reject Mother's argument that the trial court erred by reconsidering and rescinding, that same day, its initial oral grant of Mother's motion for change of judge. Contrary to Mother's assertion, the trial court's written order does not mischaracterize Mother's reason for seeking to disqualify the judge. See App. at 58. Rather, the order states the trial court's conclusion that Mother failed to make a showing of bias. A ruling upon a motion for change of judge rests within the sound discretion of the trial judge and will be reversed only for an abuse of discretion. In re Guardianship of Hickman, 805 N.E.2d 808, 814 (Ind. Ct. App. 2004), trans. denied. Mother has failed to show the trial judge abused that discretion, given our conclusion below that Mother failed to overcome the presumption that the judge was unbiased. Cf State ex rel. Mosshammer v. Allen Superior Court No. 3, 246 Ind. 366, 371, 206 N.E.2d 139, 142 (1965) (stating "where good cause exists for the disqualification of a judge, he may not rescind his action and reassume jurisdiction," but "if the motion or affidavit is defective and he has erroneously disqualified himself, he may, upon making a proper record, reassume jurisdiction, if such action is taken promptly and not waived by the parties").
Our supreme court recently addressed a claim of judicial bias in Hollinsworth v. State, 928 N.E.2d 201 (Ind. 2010):
Indiana Judicial Conduct Canon 2 requires a judge to "perform the duties of judicial office impartially, competently, and diligently." Judges must be "objective and open-minded." Rule 2.2, comment 1. "A judge shall perform the duties of judicial office . . . without bias or prejudice." Rule 2.3(A). "A judge shall be patient, dignified, and courteous to litigants." Rule 2.8(B). A judge shall disqualify himself or herself "in any proceeding in which the judge's impartiality might reasonably be questioned" including in circumstances when "the judge has a personal bias or prejudice concerning a party." Rule 2.11(A).Id. at 202. In Hollinsworth, the judge's conduct "did not meet these standards" when the judge commented in the middle of the bench trial that if the defendant were found guilty, she would be "going to jail for a year," and the judge expressed impatience at the defendant's indecision about whether to continue with the trial or reopen plea negotiations. Id. at 201. In these circumstances, our supreme court reversed the conviction.
Here, at the February 12, 2010 telephonic conference between the trial judge and counsel, the judge displayed irritation at Mother's action of obtaining a protective order against Father, which the judge viewed as interfering with Father's parenting time. The comments made by the judge may have bordered on advocacy for Father. However, the comments were not personally derogatory toward Mother, who did not personally participate in the telephonic conference. Rather, the judge's irritation was directed primarily at Mother's counsel, who acknowledged he had advised Mother to file the protective order in the manner she did. Ultimately, Mother has failed to show that the judge's comments prejudiced her case. Whether Mother's action of obtaining a protective order was proper was merely a collateral issue in the proceedings, distinguishing this case from Hollinsworth where the judge's comments implied a preexisting opinion on the ultimate issues to be decided and the defendant's exercise of her substantial rights. Further, the judge's comments here, while they could have been phrased in a more neutral demeanor, expressed a legitimate concern that a protective order not be used to interfere with Father's parenting time. Mother's protective order itself stated it is "not intended to interfere with any child visitation orders issued by any other court." App. at 53.
Mother also points to isolated instances at the two-day, August 2010 evidentiary hearing when counsel or others in the courtroom made faces or laughed at parts of Mother's testimony and Mother objected. The judge then admonished those present to maintain proper courtroom decorum and refrain from disrespectful laughter. After the only instance that indicates possible laughter by the judge, the judge apologized to Mother. These isolated instances do not rise to a showing of judicial bias against Mother. In sum, Mother has failed to overcome the presumption that the judge was unbiased.
Conclusion
The trial court did not abuse its discretion or commit reversible error regarding custody, provisional child support, the tax exemption, attorney fees, or bias. However, the trial court's findings regarding Father's pension do not disclose a sufficient basis for us to affirm on that issue. The judgment of the trial court is affirmed as to all issues except the pension, as to which we remand for further consideration and findings consistent with this opinion.
Affirmed in part and remanded in part. BARNES, J., and BRADFORD, J., concur.