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Family Law Case Updates

T.J. v. K.H.  (September 7, 2021) (Order of Protection)

[NOTE: The original Court of Appeals opinion included a typo that resulted in reporting that the incident of domestic violence that led to the Order of Protection happened 20 years ago. The opinion has since been corrected to state the domestic violence incident occurred in 2020, not 2000.]

HELD: Trial court acted within its discretion when it granted an order for protection in favor of Child, and against Mother’s ex-boyfriend.

FACTS AND PROCEDURAL HISTORY:

Mother has 6-year-old Child with Father, as well as a two-year-old with Jones. In 2020, while Mother had both children in her care and Jones was present, an incident occurred with the children that resulted in Jones being charged with domestic battery resulting in injury to a person under age 14.

Two days after the incident, Father filed, on Child’s behalf, a petition for an order of protection against Jones, which the trial court granted ex parte. Following a hearing requested by Jones, the trial court noted defects in the original petition, but ruled the order of protection would stay in place unmodified. Jones appealed.

Jones first argued that he was not a “family or household member” of Child pursuant to Ind. Code 34-26-5-2(c). However, the Court concluded that Jones’ domestic proximity to Child, even if Jones and Child are not related, satisfied the statute.

The Court of Appeals also rejected Jones’ argument that he did not commit domestic violence because he claimed the resulting injuries arose from a fight between the two children, not caused by Jones. The Court of Appeals considered this an invitation to reweigh the evidence, which it declined.

The order of protection against Jones was affirmed.

In re: the Change of Name and Gender of H.S. (August 30, 2021) (Birth Certificate Gender Marker)

HELD: Trial court did not err when it granted a request by Mother, made on behalf of her 15-year-old Child, for a name change, but then denied the request for a gender marker change.

FACTS AND PROCEDURAL HISTORY:

Mother filed a petition for change of name and gender marker on behalf of her 15-year-old transgender son. The trial court held a hearing, at which it received testimony from Mother, Father, and Child, each of whom advocated for the change of name and gender marker. Mother also submitted into evidence a letter from Child’s physician and Child’s counselor.

In its subsequent order, the trial court granted the requested name change. However, as to the requested change of gender marker, the trial court noted that it applied a “best interests” standard to its decision, but, based upon the absence of expert testimony or authenticated documents, Mother failed to prove that the change of gender marker would be in Child’s best interests. Mother appealed.

On appeal, Mother essentially argued that an uncontested request to change a child’s gender marker should be presumed to be in the child’s best interests and granted.

A divided panel of the Court of Appeals affirmed the trial court’s denial. The Court reviewed the recent case law history on this subject, which is that, in the absence of guidance by the General Assembly, an adult’s request for a change of gender marker should be granted if “made in good faith and not for fraudulent or unlawful purposes.” However, for a child, the standard is the “best interests” standard. The question raised by the instant case is what evidentiary burden should be placed upon the movant to satisfy the best interests standard.

Mother urged the Court of Appeals to adopt the position that a parent’s unopposed petition creates a presumption of best interests. The Court of Appeals rejected Mother’s argument, stating that an unquestioned application “would ignore the State’s interest in the child’s wellbeing.” Therefore, because Mother did not present evidence as to Child’s best interests, the trial court did not err when it denied the petition for change of gender marker.

Judge Pyle wrote separately to concur with the result, but to reaffirm his position, expressed previously in the Matter of A.B. case, that no statutory authority exists for the judiciary to “invent a procedure for changing a minor child’s gender marker to reflect gender identity and presentation.”

Judge Crone followed with a lengthy dissent, concluding that the record developed before the trial court—including the two letters, one from a physician and one from a licensed mental health counselor—supported the change of gender marker. He also referenced the U.S. Supreme Court’s Troxel case, which noted that there “is a presumption that fit parents act in the best interest of their children.”  Judge Crone would have reversed and remanded the trial court’s denial of the change of gender marker, as “the failure to do so was a blatant abuse of the trial court’s discretion.”

Roetter v. Roetter (August 20, 2021) (Spousal Maintenance / Property Division)

HELD: Trial court acted within its discretion when it awarded Wife spousal maintenance for 18 months rather than the three years she requested.

HELD: Trial court erred in its approach to ascertaining and dividing the marital estate when it “set off” certain property to each party before making its division.

FACTS AND PROCEDURAL HISTORY:

Husband and Wife married in 2014, at which time Husband had considerably more assets than Wife. There were two children born of the marriage. Wife became a full-time mother and homemaker, while Husband earned over $100,000/yr at his job. One of the parties’ children is on the autism spectrum and requires considerable supervision and care.

Wife filed for dissolution in late 2019. The parties resolved custody, parenting time, and child support by agreement. Property division and spousal maintenance remained contested. At the final hearing, Wife requested spousal maintenance of $100/wk for three years, citing her demanding childcare responsibilities. She also requested 55% of the marital estate.

Husband objected to Wife’s spousal maintenance request. On property division, Husband asked that he be credited for his IRA and 401(k) balances as they existed on the date of marriage, but that appreciation thereafter and all other property be divided 50/50.

The trial court’s subsequent Decree awarded Husband the values of his IRA, 401(k), and two life insurance policies at their respective date of marriage values. The Decree also assigned Wife the student loan debt she brought into the marriage. The trial court then calculated the value of all other assets of the marriage and divided them 55/45% in favor of Wife.

On Wife’s maintenance claim, the trial court ordered Husband to pay Wife $100/wk for 18 months, rather than the three years Wife had requested. The trial court’s rationale was that $12,000 had been advanced to Wife during the pendency of the case, which Wife could retain in lieu of a longer maintenance stream. Wife appealed.

Wife argued that her obligation to provide a high level of care for the children will last longer than three years, so a full, three-year maintenance award was warranted. But the Court of Appeals observed that maintenance determinations are highly discretionary and, moreover, the trial court’s decision to let Wife keep the $12,000 advance left her better off than had it awarded Wife three years of maintenance, but applied the $12,000 advance towards Wife’s property settlement.

On the property division, the Court of Appeals recited the two-step process for dividing property: account for all property of the marriage, and then determine whether a deviation from the presumed 50/50 division is warranted. Here, the Court of Appeals erred when it effectively “set off” to Husband his significant premarital assets, and then “set off” to Wife her premarital debt. Had that property been included in the trial court’s overall division analysis, it would have made for a 75/25% division of the marital estate in Husband’s favor.

The trial court’s division of property was reversed. The Court of Appeals instructed on remand that the trial court “fashion a remedy closer to the fifty-five, forty-five split Wife requested.”

Haggarty v. Haggarty (August 17, 2021) (Premarital Agreement Case)

HELD: Trial court did not err when it determined that Husband breached a provision of the parties’ Premarital Agreement by not maintaining a joint account with funds for paying monthly ordinary living expenses, and ordering that Husband pay Wife approximately $206,000 arising from that breach.

HELD: Trial court also acted within its discretion when it denied Wife’s effort to set aside Releases of Judgment that Wife had previously filed and, further, ordered Wife to pay Husband’s attorney’s fees related to those motions, even though the Premarital Agreement included an attorney fee waiver by Husband.

FACTS AND PROCEDURAL HISTORY:

Prior to the parties’ marriage in 2000, they entered into a Premarital Agreement. The Premarital Agreement generally provided that, in the event of a divorce, property would be divided between the parties based upon how it was titled, with only jointly-titled property divided between them, equally. The Premarital Agreement also provided: “[Husband] further agrees to maintain a checking account titled jointly with [Wife] with an average balance sufficient to pay ordinary living expenses for a month.”

In 2018, Wife filed a petition for dissolution of marriage, as well as a motion for partial summary judgment that Husband had breached the Premarital Agreement’s joint bank account provision. Following a hearing, the trial court issued findings that the parties did not open the joint account until 2014, which Husband then funded with an initial deposit of $2,700 that he never replenished. Husband then closed the joint account in 2019. The trial court further determined that, during that period, Wife paid over $206,000 of ordinary living expenses, from Wife’s separate funds, that should have been payable under the Premarital Agreement from a joint account funded by Husband. The trial court ordered Husband to pay this amount to Wife as part of its Decree.

Altogether from the various obligations of the Premarital Agreement, the trial court ordered Husband to pay to Wife $498,997, plus $1,183 for tax refunds, and an attorney fee contribution to Wife of $10,000. After that was ordered, Husband tendered three checks in those respective amounts, through counsel, after which Wife filed three Releases of Judgement. Each Release identified one of the three payment obligations and recited it to be “paid and satisfied.”

However, weeks later, Wife sought to have the three Releases set aside on the basis that Husband failed to pay interest on the judgments. Husband countered that each release clearly recited that each judgement was “paid and satisfied” and, thus, Wife was estopped from pursuing them further. The trial court denied Wife relief on the Releases, and instead ordered Wife to pay $2,610 of Husband’s attorney’s fees related to the Release litigation.

Wife appealed and Husband cross-appealed.

Neither party was satisfied with the trial court’s resolution of the joint account issue. Wife objected to the trial court’s conclusion that Husband’s obligation to establish and maintain the joint account began in 2014, when the parties opened the account, rather than back in 2000 when they married. The Court of Appeals concluded that asking it to determine who was at blame for why the joint account was not established prior to 2014 was an invitation to reweigh the evidence and witness credibility, which it declined to do.

On cross-appeal, Husband argued that the trial court misconstrued the meaning of “ordinary living expenses.” The trial court determined that, since the term was undefined in the Premarital Agreement and ambiguous, it accepted parol evidence to determine its meaning, and, further, the trial court’s resulting construction of the term was not erroneous.

As to the Releases, Wife advanced an argument, rejected by the Court of Appeals, that Husband’s underlying judgments were distinct from accrued interest on those judgments and, thus, the Releases should not apply to accrued interest. “[Wife’s] claim for post-judgment interest was not a claim that arose separate from the trial court’s initial judgment; it was part of the very judgment that [Wife] released.”

 

Finally, Wife appealed the attorney fee award of $2,610 related to the fees Husband incurred in responding to Wife’s motions to set aside the Releases. The Premarital Agreement included a term that generally precluded Husband from receiving an attorney fee award from Wife. But the Court of Appeals interpreted that provision as applying only to attorney’s fees that would be incurred as part of the divorce and property division, not Wife’s post-decree efforts to set aside Releases of Judgment.

The trial court’s order was affirmed.

Judge Robb wrote separately to dissent on the attorney fee award issue. While she agreed with the majority that the Premarital Agreement’s attorney fee waiver did not apply to these circumstances, she did not believe the fee award was warranted on its merits. She concluded that Wife’s effort to set aside the Releases was not meritless, and that Husband was in a position of significantly superior financial circumstances. She would have reversed the attorney fee award against Wife.

Kakollu v. Vadlamudi (July 26, 2021) (Legal Custody / Business Valuation Case)

HELD: The trial court did not err when it ordered that Mother have sole legal custody of Child, even though the parties agreed to joint legal custody, and the custody evaluation expert recommended joint legal custody.

HELD: The trial court did not abuse its discretion in valuing Husband’s business, or in its characterization of a preliminary advance of attorneys’ fees from Husband to Wife.

FACTS AND PROCEDURAL HISTORY:

Husband and Wife married in 2010, had Child together, and then, in 2018, Wife filed her petition for dissolution of marriage.  The parties entered into a preliminary agreement that provided for joint legal custody, with primary physical custody to Wife subject to Husband’s parenting time. The agreed entry also provided for Husband to advance $50,000 for Wife’s attorneys’ fees and litigation expenses, the precise characterization of which would be deferred for future determination.

In a separate proceeding, Wife sought and secured an order of protection against Husband.

Following a final hearing, the trial court noted that the parties agreed to joint legal custody, and that their evaluator, Dr. Michael Jenuwine, recommended joint legal custody; however, the trial court awarded sole legal custody to Wife. The trial court made its order based, in part, upon findings that the parties could not communicate and cooperate effectively, and that there was “an established pattern of domestic violence.”

The trial court also determined that the $50,000 transferred from Husband to Wife for preliminary attorneys’ fees would not be counted as an advance to Wife of her share of the marital estate.

Finally, after hearing from Husband’s valuation expert that Husband’s dental business was worth $1,560,000, and from Wife’s valuation expert that the business was worth $2,712,000, the trial court essentially adopted the value conclusion of Wife’s expert.

Husband appealed.

On the issue of legal custody, the Court of Appeals noted the great discretion afforded to a trial court in making custody determinations. The Court noted that the trial court’s order had “carefully and thoroughly analyzed the evidence relevant to [the statutory custody determination factors] and found that joint legal custody was not in Child’s best interests.”  The Court viewed Husband’s appeal as an invitation to reweigh the custody evidence, which it declined to do.

On Husband’s preliminary payment of $50,000 towards Wife’s attorneys’ fees, the Court of Appeals noted that the preliminary agreement stated that characterization of the payment would be deferred to final hearing whether any of the $50,0000 should be “deemed an advance of [Wife’s] property settlement . . . spousal maintenance, or some combination thereof.” The Court of Appeals concluded the trial court’s decision not to count this as an advance upon Wife’s property settlement was no erroneous, including because Husband did not present any evidence that the source of the payment was marital assets.

Finally, the Court of Appeals rejected Husband’s appeal as to the trial court’s valuation of his business, primarily because the trial court’s determination of value was within the range of valuations presented by expert testimony.

The trial court’s order was affirmed.

In Re: The Paternity of BH; Kelsey Morrison v. Aaron Harmon (July 20, 2021) (Paternity Case)

HELD: In a paternity case, the trial court did not abuse its discretion when it determined that Indiana was a more convenient forum than Michigan, and awarded the parties joint legal custody of Child.

FACTS AND PROCEDURAL HISTORY:

Mother became pregnant shortly after the parties met in the Virgin Islands. Father, who worked for FEMA, made his residence in Indiana, where Mother moved to live with him. Child was born in November 2018, after which a paternity affidavit was executed by Father. The parties continued living and working in Indiana, while raising infant Child together.

In late 2019, Mother and Child began spending more time with Mother’s family in Michigan, eventually moving there permanently in January 2020. Father was involved in an accident that resulted in a death, and he was charged with murder in February 2020. The conditions of Father’s pre-trial release did not permit him to leave Indiana.

In the spring of 2020, Father filed, in Indiana, a petition to establish paternity, custody, and support. Shortly thereafter, Mother filed similar proceedings in Michigan.

After a hearing, the Indiana trial court determined that Indiana was the proper forum for the case. While the matter was pending, Mother took Child to Indiana one weekend per month for Father to have parenting time.

When Father’s petition as heard, both counsel stipulated that joint legal custody had been agreed upon, and at no time did Mother request sole legal custody. In terms of parenting time, Father requested more than one weekend per month: Father offered to meet Mother in Indiana, halfway between their homes, for exchanges two weekends per month. Mother was agreeable with two weekends per month, but proposed that one of them occur by Father travelling to Michigan and exercising his time there.

The trial court issued its order, providing for joint legal custody and a parenting time consistent with Father’s proposal. Mother appealed.

On the issue of forum, the Court of Appeals reviewed Indiana’s codification of the UCCJA, which lists relevant factors for the determination of forum. In light of the totality of the circumstances, especially including that Child had lived most of his life in Indiana, not Michigan, the trial court’s determination that Indiana was the more appropriate forum was not an abuse of discretion.

The Court of Appeals quickly dispensed with Mother’s argument that the award of joint legal custody was erroneous, since Mother had stipulated to it at trial and had never requested sole legal custody.

On the issue of parenting time, the Court of Appeals noted the highly discretionary nature of parenting time orders in “distance as a factor” cases. Including because of the limitations on Father not to leave the state of Indiana, the trial court’s order that Father’s two weekends per month could both be exercised in Indiana was not an abuse of discretion.

The trial court’s order was affirmed.

Judge Tavitas wrote separately to concur. But she pointed out that the Indiana trial court neglected to follow the provisions of the UCCJA about communicating on the forum issue with its corresponding court in Michigan. However, because neither party objected, the argument was waived.

Romero v. McVey (April 8, 2021)

HELD: Trial court erred when it denied grandparents request for visitation rights, apparently based upon an optimism that such visitation could be arranged informally and without a court order.

FACTS AND PROCEDURAL HISTORY:

Child was born to parents who had complicated legal and substance abuse problems, and Child was immediately placed in the care of Child’s maternal aunt (“Aunt”). Aunt began the process of initiating an adoption of Child.

A week after Child’s birth, DCS initiated a CHINS matter, citing Mother’s substance abuse. Mother was out of the picture thereafter, and Father was incarcerated.

Father’s mother and stepfather (“Grandparents”) filed a petition for grandparent visitation. While Grandparents were seeing Child regularly based upon an informal understanding they had with Aunt, Grandparents expressed concerned the opportunities to see Child might stop after the Aunt’s adoption of Child was finalized.

At a hearing of the matter, Aunt testified that she was supportive of Child’s relationship with Grandparents, and that she wished for it to continue. However, the trial court denied the petition for grandparent visitation, writing, in part, that “[n]o evidence has been presented suggesting that [Aunt] will restrict appropriate conduct with [Child’s] relatives post adoption.” Grandparents appealed.

The Court of Appeals noted the deference afforded to trial courts hearing family law matters. The Court noted that the Grandparents met the statutory criteria for seeking a grandparent visitation order and, importantly, that such an order must be established prior to an adoption for a grandparent to have guaranteed contact with the child post-adoption.

Evaluating the circumstances, the Court of Appeals concluded it was in Child’s best interests to have a grandparent visitation order, and that the trial court’s denial of same was clearly erroneous.

The denial of the Grandparents’ visitation petition was reversed and remanded for further proceedings to fashion a specific grandparent visitation order.

Faulk v. Bissell (March 29, 2021)

HELD: Trial court in divorce proceedings erred when its Decree ordered Child’s last name changed from “Faulk,” which was Father’s last name, to “Bissell-Faulk,” a hyphenated combination of the parents’ last names; however, the legal error was that the trial court lacked the statutory authority to order any change of Child’s name.

HELD: Trial court erred in its child support calculation when it declined to impute income to Mother due to her ability to live rent-free with her parents.

FACTS AND PROCEDURAL HISTORY:

Mother and Father married in 2017, at which time Mother changed her last name from Bissell to Father’s last name, Faulk. Mother became pregnant but filed a petition for dissolution of marriage prior to giving birth to Child. When Mother gave birth to Child, she signed a birth certificate that listed Child’s name as J.L. Bissell, rather than C.J. Faulk, as the parties had agreed previously.

At the final hearing of the divorce, Father asked that Child’s last name be changed to Faulk, whereas Mother requested that it either be left Bissell, or changed to Bissell-Faulk. The trial court ordered Child’s name changed to Bissell-Faulk. Also, in its child support calculation, the trial court declined to impute income to Mother based upon her living rent-free with her parents, instead basing Mother’s income for support purposes solely on her earned income as a school teacher.

Father appealed.

The Court of Appeals concluded that the trial court had no statutory authority to change Child’s name. The only marriage dissolution statute that authorizes a name change is that of a wife’s name being restored to her maiden name. The Court noted that there is an Indiana statute that permits parents or guardians to change the name of a child, but none of that statute’s provisions or requirements had been followed in this case. Therefore, the trial court’s name change was reversed.

On the issue of Mother’s income imputation, evidence was presented that Mother lives rent-free with her parents. Mother estimated that an apartment would cost her about $1,000 per month. Noting the Indiana Supreme Court’s 1999 Glass v. Oeder case, which affirmed an imputation to a father for his rent-free residence, the Court of Appeals reversed the trial court’s child support calculation, remanding the issue for inclusion of the value of Mother’s living arrangements to be included in Mother’s income for the child support calculation.

Two other appellate issues raised by Father were rejected by the Court. The trial court’s Decree included an annual child support true-up to address Father’s potential for irregular income as set forth in the Guidelines. The Court of Appeals affirmed the true-up provision.

Second, the trial court’s Decree awarded Mother primary physical custody, subject to Father’s IPTG parenting time. However, as to the “opportunity for additional parenting time,” the Decree added some terms and conditions regarding notice and logistical considerations that do not appear in the IPTG. The Court of Appeals did not consider these additional terms to be an abuse of discretion.

The Court ordered the provision of the Decree that changed Child’s name reversed and remanded with instructions to vacate the name change order.

Judge Riley dissented on the name change issue. She believed that the name change was presented to the trial court as part of the miscellaneous incidents of resolving the dissolution of the marriage, and Mother did not object to proceeding in that manner. Judge Riley would have then applied a “best interests of the child” standard to a prospective name change, under which she expressed concerns that a hyphenated name would leave child with a different last name than either of her parents, or any of Child’s siblings. She concluded the trial court had authority to change Child’s name under the circumstances of the case, but that changing it to a hyphenated name was an abuse of discretion.

In re: the Paternity of B.R.H. (March 26, 2021) (Relocation Case)

HELD: Trial court’s order denying Mother’s request to relocate with Child to New Mexico was affirmed. While Mother’s proposed relocation was made in good faith, the relocation was not in Child’s best interests.

FACTS AND PROCEDURAL HISTORY:

Mother and Father had a relationship in 2015 that resulted in the birth of Child in 2016. Father filed a petition to establish paternity that resulted in an agreed entry that did so, as well as provided for the parties to share joint legal custody of Child, with Mother’s primary physical custody subject to Father’s IPTG parenting time.

In 2018, Mother filed a petition to relocate to Texas with Child. In support, Mother asserted that she was offered employment there with a hospital as a registered dietician, and that the Texas job was her only offer of employment after a job search. Father responded with a petition to modify custody to him.

Following a hearing in 2018, the trial court granted Mother’s petition to relocate and denied Father’s petition to modify custody. However, Mother’s job opportunity in Texas did fell through, and she did not move.

Mother subsequently met and married a man living in Clovis, New Mexico, and she filed a petition to relocate there. That petition and Father’s response to it were heard by the trial court over several days. While the trial court concluded that Mother’s desire to relocate was in good faith (to be with her husband), it was not in Child’s best interests to be relocated from Dubois County to New Mexico. Mother’s petition to relocate with Child was denied. Mother appealed.

The Court of Appeals noted the deference that is afforded trial courts, particularly in family law matters. Reviewing the record, the Court concluded that the evidence supported the trial court’s findings that, while Mother’s proposed relocation was made in good faith, it was not in Child’s best interests to do so, particularly due to the impact a move of that great distance would have on Child’s relationship with Father, as well as all of the bonded relationships Child had established in Indiana.

The trial court’s order denying Mother’s proposed relocation was affirmed.