Tracy K. Barber v. Amy Henry , 55 N.E.3d 844 ( 2016 )


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  •                                                                                FILED
    May 31 2016, 6:52 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Jonathan M. Young                                          Trisha S. Dudlo
    Newburgh, Indiana                                          Kelly A. Lonnberg
    Bamberger Foreman Oswald &
    Hahn, LLP
    Evansville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Tracy K. Barber,                                           May 31, 2016
    Appellant-Petitioner,                                      Court of Appeals Case No.
    87A01-1510-JP-1639
    v.                                                 Appeal from the Warrick Circuit
    Court
    Amy Henry,                                                 The Honorable Greg A. Granger,
    Appellee-Respondent.                                       Judge
    Trial Court Cause No.
    87C01-1503-JP-47
    Riley, Judge.
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016                            Page 1 of 19
    STATEMENT OF THE CASE
    [1]   Appellant-Respondent, Tracy K. Barber (Father), appeals the trial court’s
    Order, granting Appellee-Petitioner’s, Amy Henry (Mother), verified petition to
    modify foreign child support order.
    [2]   We affirm, in part, reverse, in part, and remand with instructions.
    ISSUES
    [3]   Father raises two issues on appeal, which we restate as follows:
    (1) Whether the trial court abused its discretion by calculating Mother’s
    income at minimum wage when she is a medical doctor and has a
    historical income in excess of $150,000 but elects to stay at home with
    her children; and
    (2) Whether the trial erred in concluding that Father was responsible for
    payment of expenses incurred prior to the filing of Mother’s modification
    petition.
    FACTS AND PROCEDURAL HISTORY
    [4]   Father is the natural parent of S.B., born on February 21, 1999. S.B. resides in
    Newburgh, Indiana with Mother, Mother’s husband, Dr. Dan Henry (Dr.
    Henry), Mother’s minor child from a prior marriage, C.R., aged 14, and
    Mother’s and Dr. Henry’s minor child, B.H, aged 7 at the time of the hearing.
    S.B. and B.H. have both been diagnosed with autism spectrum disorder, while
    C.R. has been diagnosed with attention deficit hyperactivity disorder.
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 2 of 19
    [5]   On August 1, 2001, the Fayette Circuit Court, in Kentucky, entered an Agreed
    Order, adopting the agreement between Father and Mother to establish joint
    legal custody of S.B., with Mother receiving sole physical custody and Father
    having “liberal visitation.” (Appellant’s Conf. App. p. 1). Father agreed to pay
    $230 per month towards child support. The Order reflected that “[b]oth parties
    acknowledge that this amount is less than required by the Kentucky Child
    Support Guidelines and knowingly waive the Guidelines’ amount.”
    (Appellant’s Conf. App. p. 2).
    [6]   Mother is a doctor of osteopathic medicine; she graduated in 2001 and
    completed her residency in 2004. After residency, Mother shared a practice
    with her current husband until the practice “became overwhelming.”
    (Transcript p. 22). In 2013, the practice was sold to Methodist Hospital in
    Henderson, and Mother remained employed by the hospital for another two
    years. Mother worked Monday through Thursday, from 9:00 a.m. until “the
    kids got out of school.” (Tr. p. 22). After a while, Mother’s employment was
    reduced to three days per week. She worked part-time at Henderson Minor
    Outpatient Clinic, and later reduced her hours to one shift per week, and
    eventually, to one shift per month. Mother made the decision to reduce her
    employment because the “therapy appointments” for S.B. and B.H. “were
    getting out of control.” (Tr. p. 23). She stopped being employed altogether in
    December 2014.
    [7]   Initially, Mother reduced her hours when B.H. was diagnosed with autism
    spectrum disorder. B.H. had “therapy seven hours a week[,]” in addition to the
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 3 of 19
    therapy at home. (Tr. p. 23). In the fall of 2013 and a month after B.H. was
    diagnosed, S.B. was similarly diagnosed with autism spectrum disorder. At
    first, S.B. only took social skills classes but due to his delayed diagnosis, the
    number of appointments increased because he “had to make up for a lot of lost
    time.” (Tr. p. 24).
    [8]   On April 26, 2014, an incident involving S.B. at his Father’s residence resulted
    in juvenile criminal charges filed against S.B. After the charges were filed, S.B.
    was placed on informal house arrest and suicide watch for about a month. As a
    term of S.B.’s informal house arrest, S.B. could not be left alone with any
    children or his siblings and needed constant supervision. Pursuant to the
    juvenile order, S.B. was referred for testing and evaluation by a specialist,
    located in Bloomington, Indiana. After pleading guilty, S.B. was placed on
    probation, with very strict guidelines, until his eighteenth birthday. The
    probation requirements include that S.B. can “never be unsupervised with
    anyone under the age of 14[,] is never to be placed in a supervisor position for
    any kids[, and] he should refrain from viewing pornography, or any type of
    materials of that matter.” (Tr. p. 27). Furthermore, as a probation requirement
    at the recommendation of the specialist, S.B. was not to contact the victim or
    the victim’s family, which included Father, until the victim and the family had
    received counseling. Father did not attend any of S.B.’s juvenile court hearings
    and, at the time of the trial court’s hearing on the child support modification,
    had not yet undergone counseling. S.B. finished his court-ordered program at
    the end of May 2015.
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016     Page 4 of 19
    [9]    Because he was placed on probation, Mother started homeschooling S.B in
    September of 2014. She hired a life coach to help S.B. with his home school
    requirements, an algebra tutor, as well as an algebra teacher. S.B. was able to
    attend home room at Castle High School in the Warrick County School system
    for a semester starting January 2015 “just to get acquainted with the people
    while he is learning these skills that he needs” and “with the intention that he
    would integrate in the fall of 2015.” (Tr. pp. 30, 51). S.B. returned to school
    fulltime in the fall semester of 2015. Between S.B.’s court ordered treatments,
    the two boys’ social skills classes, and the three boys’ therapy appointments,
    Mother has not been able to obtain employment in her profession.
    [10]   Dr. Henry, Mother’s current husband and father to B.H., is a pulmonary
    physician at Deaconess Hospital. Due to the needs of the three children, Dr.
    Henry changed his work from critical care medicine to the sleep lab to “have a
    more fixed schedule.” (Tr. p. 103). His “base salary will go down significantly
    but it will allow [him] a lot more time at home.” (Tr. p. 104). Dr. Henry also
    committed to working one day per week at Veteran’s Affairs to obtain better
    health insurance for the children’s treatments. Despite the insurance coverage,
    the family carries “a significant amount of uninsured medical expenses.” (Tr.
    p. 106). Dr. Henry “took off work all the days that [S.B.] was in court and was
    [] there. [H]e was there for numerous social workers visits when the
    Department of Children Services had to come to [the] home. [H]e helped with
    all the appointments[.]” (Tr. p. 43). “He has lost wages, he has lost skills,
    expertise, and respect.” (Tr. p. 43).
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 5 of 19
    [11]   Father is employed at Dana Corporation as a safety manager. He earned a
    salary of approximately $97,500 in 2015, which included a $6,000 bonus. He
    currently resides with his fiancé, who pays one-half of the mortgage, utilities,
    and food. Father pays $170 per month in child support for a subsequent born
    child and is also saving $800 per month for his upcoming nuptials.
    [12]   One year after the incident that resulted in S.B.’s probation, Father contacted
    S.B. by text message. Mother felt compelled to seek a protective order against
    Father. On March 5, 2015, Mother filled her petition for an order for
    protection and request for a hearing filed on behalf of a child. On March 31,
    2015, Mother filed a petition to transfer jurisdiction and register foreign order,
    as well as a verified petition to modify foreign child support order. On April 8,
    2015, the trial court assumed jurisdiction and registered the order issued in
    Kentucky. On April 24, 2015, Father filed his response to Mother’s pleadings,
    as well as a verified information for contempt and a petition to modify
    parenting time. On August 25, 2015, the parties submitted a Partial Agreed
    Order to the trial court, agreeing, in pertinent part, to the following:
    1. The parties agree and stipulate that [the trial court] is the
    proper jurisdiction for this juvenile paternity matter.
    2. The Father shall set up his own therapy sessions through a
    reunification therapist of his choice and at his expense,
    recommended or approved by [the Bloomington specialist
    appointed in the juvenile matter].
    3. The child shall continue with his existing therapist on the
    issue they are currently working on, and in addition [S.B’s]
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016    Page 6 of 19
    therapist shall be authorized to communicate with the
    Father’s therapist to form an agreement regarding initial
    reunification meetings and how to handle them.
    4. Once the therapists agree that it is appropriate, Father and
    [S.B.] will participate in parenting time at the Parenting Time
    Center in Evansville[,] Indiana at the Father’s expense, for so
    long as the therapists jointly agree that said supervised
    sessions are appropriate.
    5. When the therapists agree that the supervised sessions have
    been going well and it is appropriate to move forward, the
    parties shall move forward on to alternate weekend parenting
    time with Father in public locations, for 3 to 4 hours.
    6. The Father shall have no contact with the minor child other
    than through this process of work with the therapists and
    initially via supervision.
    ****
    9. After supervision ends, exchanges of the child for parenting
    time shall take place at a neutral location. Neither party shall go
    to the other party’s property.
    10. The Mother’s request for protective order is hereby
    withdrawn, with the exception of her request for reimbursement
    of expenses.
    (Appellant’s App. pp. 20-21).
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 7 of 19
    [13]   Also, on August 25, 2015, the trial court conducted a hearing on the remaining
    issues and entered its Order on September 23, 2015, concluding, in pertinent
    part:
    8. [Mother], when she was employed in private practice, had
    earned in some years in excess of $150,000.00. [Mother] is
    currently not employed outside of her maternal and spousal
    duties to care for and raise her children and step-children.[ 1]
    9. Mother’s son, [S.B.], and her stepson[ 2], [B.H.], as special
    needs individuals require supervision, guidance, and assistance
    above what is required for child[ren] who are not special needs.
    10. Mother’s current employment situation is not a choice made
    to avoid any child support obligation, and is not due to an effort
    to avoid the payment of any child support obligation.
    Furthermore, Mother’s spouse’s significant income has not
    contributed to Mother’s decision not to be employed. In
    summary, [Mother’s] unemployment is not contrived.
    11. As a result of a juvenile delinquency petition involving
    [S.B.], Mother has incurred certain expenses for which she seeks
    contribution from [Father].
    1
    Although the trial court references step-children, the record and Mother’s own testimony clearly reflects
    that all three children are her biological children.
    2
    Again, although the trial court refers to B.H. as Mother’s step-son, Mother’s own testimony unequivocally
    establishes that B.H. is her biological son and the child of the marriage between Mother and Dr. Henry.
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016                            Page 8 of 19
    12. The [c]ourt finds that [Father] is to pay [Mother] the sum of
    $14,140.46 as his contribution to Mother’s expenses incurred for
    [S.B.].
    13. The [c]ourt, having received testimony and evidence
    concerning the income and resources available to the parties,
    determines that Father shall pay child support in the amount of
    $262.00 a week beginning September 25, 2015, pursuant to the
    Child Support Worksheet attached to and incorporated into this
    Order. Mother is to pay the first $873.60 of uninsured health
    care expense, and thereafter Father is to pay 88.45% and Mother
    11.55% of uninsured health care expenses.
    (Appellant’s App. pp. 5-6).
    [14]   Father now appeals. Additional facts will be provided as necessary.
    DISCUSSION AND DECISION
    I. Standard of Review
    [15]   Decisions regarding child support rest within the sound discretion of the trial
    court. Taylor v. Taylor, 
    42 N.E.3d 981
    , 986 (Ind. Ct. App. 2015), trans. denied.
    Thus, we reverse child support determinations only if the trial court abused its
    discretion or made a determination that is contrary to law. 
    Id.
     An abuse of
    discretion occurs only when the decision is clearly against the logic and effect of
    the facts and circumstances before the court, including any reasonable
    inferences therefrom. Hooker v. Hooker, 
    15 N.E.3d 1103
    , 1105 (Ind. Ct. App.
    2014). Whether the standard of review is phrased as “abuse of discretion” or
    “clear error,” the importance of first-person observation and preventing
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016     Page 9 of 19
    disruption to the family setting justifies deference to the trial court. 
    Id.
     (citing
    MacLafferty v. MacLafferty, 829 N.E.1d 938, 940-41 (Ind. 2005)).
    II. Minimum Wage
    [16]   Father disputes the trial court’s modification of his support obligation for S.B.
    Following the determination of paternity, the court may order either or both
    parents to pay any reasonable amount for child support. I.C. § 31-14-11-1.1. A
    child support order in a paternity proceeding is subject to the provisions of Ind.
    Code section 31-16-8-1. See I.C. § 31-14-11-2.3 (“A child support order issued
    under this chapter is subject to the provisions in [I.C. §] 31-16-6 through [I.C. §]
    31-16-13”). Accordingly, “[p]rovisions of an order with respect to child support
    . . . may be modified or revoked.” I.C. § 31-16-8-1; In re Paternity of M.R.A., 
    41 N.E.3d 287
    , 294 (Ind. Ct. App. 2015). Except as provided in another statute
    which is not applicable here, a modification to an existing order for child
    support may be made only:
    (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 be ordered applying the child
    support guidelines; and
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016     Page 10 of 19
    (B) the order requested to be modified or revoked was issued
    at least twelve (12) months before the petition requesting
    modification was filed.
    I.C. § 31-16-8-1(b). The party seeking to modify a child support order bears the
    burden of establishing that the statutory requirements have been met. Hooker,
    15 N.E.3d at 1105.
    [17]   Here, Father’s contention is not the modification of child support per se, but
    rather the trial court’s calculation. More specifically, Father’s challenge is
    focused on the court’s imputation of minimum wage as Mother’s income, while
    Mother has a medical degree and has been employed as a physician before.
    Father assures us that he “is not asking that Mother make employment
    decisions based upon obtaining the highest pay[;]” rather “he is just asking that
    the [c]ourt fairly allocate support where the Mother has admittedly chosen not
    to work based upon her husband’s substantial income.” (Appellant’s Br. p. 11).
    [18]   Trial courts may impute income to a parent for purposes of calculating child
    support upon determining that he or she is voluntarily unemployed or
    underemployed. Matter of Paternity of Buehler, 
    576 N.E.2d 1354
    , 1355-56 (Ind.
    Ct. App. 1991). The Child Support Guidelines permit imputation to discourage
    parents—both the payor non-custodial parent and the recipient-custodial
    parent—from avoiding significant child support obligations by becoming
    unemployed or taking a lower paying job. See 
    id.
     But the Guidelines do not
    require or encourage parents to make career decisions based strictly upon the
    size of potential paychecks, nor do the Guidelines require that parents work to
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016       Page 11 of 19
    their full economic potential. 
    Id.
     “It is not our function . . . to approve or
    disapprove of the lifestyle of [parents] or their career choices and the means by
    which they choose to discharge their obligations in general.” 
    Id.
     “To
    determine whether potential income should be imputed, the trial court should
    review the obligor’s work history, occupational qualifications, prevailing job
    opportunities, and earning levels in the community.” Homsher v. Homsher, 
    678 N.E.2d 1159
    , 1164 (Ind. Ct. App, 1997).
    [19]   A review of the record leaves us convinced that Mother is unemployed with just
    cause. The record reflects that, starting in 2013, Mother’s employment
    gradually reduced. Although she was in fulltime employment with Methodist
    Hospital, progressively her hours were reduced, initially to three days per week
    and eventually to only one shift per month. She stopped being employed
    altogether in December 2014. Mother’s reduction in employment coincided
    with the diagnosis of B.H. and S.B. and the corresponding increase of
    appointments “to make up for lost time” of a delayed identification of S.B.’s
    autism. After the incident at Father’s residence in April 2014 and the
    imposition of probationary requirements by the juvenile court, S.B. was placed
    on house arrest. He became “attached to [Mother’s] hip for about two months,
    [she] could not leave [the] children alone even in the same room.” (Tr. p. 26).
    The juvenile court required testing and even more therapy, which will remain in
    place until S.B. is 18 years old. Because S.B. was placed on house arrest,
    Mother started homeschooling S.B. in September of 2014 with the help of
    private tutors. In January 2015, S.B. started attending home room at Castle
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 12 of 19
    High School with intent to transition him into fulltime school in the fall
    semester of 2015.
    [20]   Besides S.B.’s court ordered treatments and requirements, Mother takes S.B.
    and B.H. to social skills classes, and all three boys to their therapy
    appointments. At the time of the hearing, all three children were enrolled in
    school fulltime. Mother, with the help of Dr. Henry, gets the boys ready in the
    morning and Dr. Henry drops them off at school. A normal school day ends at
    2:15 p.m. Two days a week, Mother picks up B.H. early for therapy and every
    three months she takes B.H. for a dental appointment. In addition, B.H. has
    soccer practice twice a week and at-home therapy, which started on an hourly
    basis. S.B. has an appointment with his therapist every other week, and his
    psychiatrist every other month. He has social skills classes once a week after
    school and an Individualized Educational Plan (IEP), which requires extra
    “communication between [Mother] and the teachers.” (Tr. p. 64). C.R., the
    middle child, sees a psychiatrist every three months.
    [21]   Mother has applied for respite care and has been approved. However, the
    agency appointed for the care has yet to fulfill the hourly obligation. Due to the
    needs of the three children, Dr. Henry changed his medical specialty to have a
    more fixed schedule. This career choice came with a significant decrease in his
    base salary in exchange for “a lot more time at home.” (Tr. p. 104).
    [22]   Based on the particular facts and circumstances before us, the trial court
    properly concluded that “Mother’s current employment situation is not a choice
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 13 of 19
    made to avoid any child support obligation[.]” (Appellant’s App. p. 5). A
    highly educated parent who chooses to leave her employment to help her three
    children with special developmental needs is not unemployed without just
    cause. Although Dr. Henry is in an enviable affluent position to give Mother
    and the children a more comfortable life, this is not Mother’s main reason for
    not working. Rather, Mother’s life revolves around her three minor sons and
    their therapy, and is focused on getting them the best care she can give them so
    they may each reach their full potential. It is not our function to “force parents
    to work to their full economic potential or make their career decisions based
    strictly upon the size of potential paychecks.” Buehler, 
    576 N.E.2d at 1356
    .
    Although the trial court could have imputed no income to Mother, here, the
    trial court allotted Mother the minimum income in its calculation of child
    support. “While the Guidelines clearly indicate that a parent’s avoidance of
    child support is grounds for imputing potential income, it is not a necessary
    prerequisite.” In re Paternity of Pickett, 
    44 N.E.3d 756
    , 766 (Ind. Ct. App. 2015).
    Instead, “it is within the trial court’s discretion to impute potential income even
    under circumstances where avoiding child support is not the reason for a
    parent’s unemployment.” 
    Id.
     Accordingly, the trial court did not abuse its
    discretion in its calculation of the weekly child support.
    III. Payment of Expenses
    [23]   Next, Father contends that the trial court erred when it required Father to
    reimburse Mother for “certain expenses” she incurred “[a]s a result of a juvenile
    delinquency petition involving S.B.” in the amount of $14,140.46. (Appellant’s
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    App. p. 5). Father relies on the initial child support order issued by the
    Kentucky court, which did not include a provision for medical expenses, to
    maintain that he is not obligated to pay for medical, counseling, and other
    expenses related to S.B.’s juvenile case.
    [24]   On March 5, 2015, Mother filed a petition for an order of protection. 3 On the
    petition, Mother checked “the box requesting an order for [Father] to reimburse
    [Mother] and or the child [] who need protection for expenses related to the
    basis of the protective order.” (Tr. p. 95). On April 1, 2015, Mother
    supplemented the petition by specifically requesting “reimbursement for
    medical expenses, counseling expenses and other costs[.]” (Tr. p. 96). At the
    beginning of the hearing on August 25, 2015, the parties presented a Partial
    Agreed Order to the trial court, which stipulated:
    10. The Mother’s request for protective order is hereby
    withdrawn, with the exception of her request for reimbursement
    of expenses.
    11. The [c]ourt now hears evidence regarding the remaining
    issues not agreed upon by the parties, and takes these remaining
    issues under advisement, those being child support, uninsured
    medical expenses, retroactive child support, retroactive uninsured
    medical expenses, other expenses submitted by Mother under the
    3
    The parties did not include the petition for the protective order or its supplement in their respective
    appendices. We will therefore rely on the transcript to infer their contents.
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    protective order petition for reimbursement, and the Mother’s request
    for attorney fees.
    (Appellant’s App. pp. 21-22) (emphasis added). During the presentation of this
    Partial Agreed Order to the trial court, Mother clarified:
    We are not asking for a protective order going forward, but our
    petition for protective order requested [] reimbursement of the
    expenses that [Mother] incurred as a result of these incidents
    [under the juvenile cause] and we continue to make that request.
    So it’s a child support going forward, child support retroactive to
    our petition, [] and other expenses.
    (Tr. p. 16). After Father agreed with this elaboration of the Partial Agreed
    Order, the trial court accepted the terms.
    [25]   While Father is correct that the initial child support order does not include a
    provision for medical and counseling costs; he nevertheless agreed to the
    reimbursement of his share of these expenses, as related to S.B.’s juvenile cause,
    through the Partial Agreed Order accepted by the trial court on August 25,
    2015. Because Father agreed, he waived the issue for our review and cannot
    now be heard to complain. 4
    [26]   Next, contesting the amount of the reimbursement, Father claims that Mother’s
    expenses were unreasonable. During trial, Mother testified that the total
    4
    Because we conclude that the reimbursement of the disputed costs were agreed upon in the Partial Agreed
    Order, we do not address Father’s related argument that the reimbursement of the particular costs cannot be
    based upon the Indiana Civil Protection Order Act. See I.C. § 34-26-5-9(c).
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016                        Page 16 of 19
    amount of out-of-pocket expenses related to S.B.’s juvenile cause was
    $28,280.92. In its Order, the trial court ordered Father to reimburse half, or
    $14,140.46.
    [27]   Father contends that Mother sought reimbursement of counseling expenses,
    tutoring expenses and therapeutic evaluations of which Mother did not seek
    Father’s input or agreement before incurring these. The record reflects that one
    of the probationary requirements of the juvenile cause included the prohibition
    of contacting the victim or the victim’s family, of which Father was part, before
    they had undergone counseling. As Father had yet to undergo counseling at
    the time of the custody modification hearing, Mother was not in a position to
    consult Father before incurring the expenses.
    [28]   Secondly, Father objects to the expenses because “Mother’s husband paid the
    expenses.” (Appellant’s Br. p. 15). While Father explicitly testified that it is
    Dr. “Henry’s responsibilities to pay those expenses” for S.B., S.B. is Father’s
    son, not Dr. Henry’s child. (Tr. p. 155). The testimony reflects that all
    expenses were expenses incurred for S.B. as a result of the incident related to
    the juvenile cause. Because Dr. Henry is the only adult employed in Mother’s
    household, it is understandable that he paid for those expenses. Accordingly, a
    reimbursement would not be a windfall for Dr. Henry as he was not the parent
    responsible for payment of half of those expenses.
    [29]   Lastly, Father disputes the amount of “Attorney fees – civil” in the total
    amount of $14,018.00. (Mother’s Exh. 1). Contesting the lack of detail in the
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    amount of attorney fees, he rejects the reasonableness of the reimbursement. In
    response, Mother asserts that “the trial court also granted payment of half of
    [Mother’s] attorney fees.” (Appellee’s Br. p. 22). However, the trial court’s
    Order, issued September 23, 2015, is silent with respect to attorney fees. The
    only expenses alluded to by the trial court are “the certain expenses” Mother
    “has incurred” as a result “of a juvenile delinquency petition involving S.B.[;]”
    the trial court did not explicitly grant attorney fees in the child support
    proceeding. (Tr. p. 5).
    [30]   Nevertheless, pursuant to the Partial Agreed Order, the parties agreed to submit
    the issue of reimbursement of “other expenses submitted by Mother under the
    protective order petition” to the trial court. (Appellant’s App. p. 22). The
    Indiana Civil Protection statute, which governs the issuance of protective
    orders, specifies that a court may order a party to pay attorney’s fees. I.C. § 34-
    26-5-9(c)(3)(A). Accordingly, as “other expenses” is not further detailed, we
    infer that these may include the statutorily awarded attorney’s fees. Thus, in
    the absence of a specific grant of attorney fees for the support modification,
    only the attorney fees pertaining to the protective order can be reimbursed.
    [31]   At trial, Mother submitted a summary exhibit with a general outline of her
    expenses, which included the reference of the civil attorney fees in the amount
    of $14,018.22. She also presented the trial court with a “Ledger Report,” which
    specified total amounts of daily attorney fees incurred in “Issues regarding
    [S.B.]” (Mother’s Exh. 1, tab B). The Ledger Report fails to include details
    such as the type of work, hourly or fixed, amount of time spent. The trial court
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016       Page 18 of 19
    admitted the Ledger Report “as a demonstrative exhibit,” with Father’s
    reservation that he would receive an itemized billing. The record does not
    include evidence establishing that Father ever received the itemized billing
    statement. Accordingly, we reverse the trial court’s order with respect to the
    civil attorney fees and remand with instructions to determine which part of the
    total amount claimed can be attributed to the protective order petition.
    CONCLUSION
    [32]   Based on the foregoing, we conclude that trial court did not abuse its discretion
    when it imputed minimum wage to Mother after concluding that she was not
    voluntarily unemployed. We reverse the trial court with respect to the award of
    civil attorney fees and remand with instructions to determine which portion of
    these fees can be attributed to the protective order. We affirm the trial court
    with respect to all other reimbursement expenses.
    [33]   Affirmed in part, reversed in part, and remanded with further instructions.
    [34]   Kirsch, J. and Pyle, J. concur
    Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 19 of 19
    

Document Info

Docket Number: 87A01-1510-JP-1639

Citation Numbers: 55 N.E.3d 844

Filed Date: 5/31/2016

Precedential Status: Precedential

Modified Date: 1/12/2023