Melba Deloris Polk-King v. Lawrence Delorosa King ( 2014 )

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:
Jan 27 2014, 8:31 am
LILABERDIA BATTIES
Batties & Associates
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MELBA DELORIS POLK-KING, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A05-1305-DR-248
)
LAWRENCE DELOROSA KING, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael D. Keele, Judge
The Honorable Victoria M. Ransberger, Magistrate
Cause No. 49D07-1202-DR-7753
January 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Melba Deloris Polk-King (“Wife”) appeals the calculation of the child support
obligation and the division of marital assets in the dissolution decree dissolving her
marriage to Lawrence Delorosa King (“Husband”) following a final hearing. Polk-King
presents two issues on appeal:
1. Whether the dissolution court erred when it ordered Husband’s child
support obligation for two children to be calculated using ninety-
eight overnight visitations per year when Husband has overnight
visitation with only one of the children.
2. Whether the dissolution court erred when it did not include some of
Wife’s debts in the marital pot subject to distribution and, as a result,
abused its discretion when it divided the marital estate.
We affirm in part, reverse in part, and remand with instructions.
FACTS AND PROCEDURAL HISTORY
Husband and Wife were married on October 21, 1994. They have two children:
L.D.K., born April 29, 1995, and L.A.K., born November 13, 1997. Husband and Wife
physically separated in 2010, and Wife filed a petition for dissolution on February 27,
2012. Wife’s petition for dissolution included a request for provisional orders.
Following a preliminary hearing, the dissolution court entered a provisional order that, in
relevant part, granted Husband parenting time with both children according to the Indiana
Parenting Time Guidelines (“Guidelines”) and set his weekly child support obligation at
$150 retroactive to the date Wife filed the petition for dissolution.
The dissolution court held the final hearing on April 2, 2013. No party requested
special findings or conclusions thereon. Following the final hearing and at the
dissolution court’s request, the parties each tendered a proposed decree. And on April
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26, the dissolution court entered its decree dissolving the marriage (“Decree”). In
relevant part, the Decree awarded sole custody of the children to Wife, gave Husband
parenting time with L.A.K. pursuant to the Guidelines, and ordered Husband to continue
to pay $150 per week for child support through an income withholding order. The
Decree made no provision for parenting time with L.D.K., who by then was eighteen
years old. With regard to the marital estate, the dissolution court found as follows:
The Court has carefully considered the exhibits and testimony of the parties
as to the marital estate. Wife has claimed several debts totaling over
$34,000.00. However, even when discovery was served on March 13,
2012, two weeks after Wife filed for divorce, Wife never produced proof of
debt on or near the date of filing for Kohl[’]s, Citi Bank, US Bank, Macy’s
and Bank of America. This court granted a Motion to Compel and Wife
finally responded on August 28, 2012. Wife answered interrogatories with
amounts allegedly owed on [the] date of filing but never produced
documentation over more than a year after her filing of the dissolution for
the 5 debts claimed as denoted above. No documentation was produced at
trial on April 2, 2013. The Court does not include these purported debts in
the marital estate to be divided which does result in a deviation of the
presumptive equal division if the debts were actually incurred in the
amounts as requested by Wife.
Appellant’s App. at 9-10. Having excluded Wife’s alleged debts from the marital estate
for purposes of division, the dissolution court then divided the remainder of the marital
estate equally between the parties. Wife now appeals.
DISCUSSION AND DECISION
Issue One: Child Support Obligation
A trial court’s determination of child support obligations is presumptively valid
and given broad deference upon appeal. In re Marriage of Blanford, 937 N.E.2d 356, 360
(Ind. Ct. App. 2010) (citing Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008)). We
reverse such decisions only where they are clearly erroneous or contrary to law. Id. A
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decision is clearly erroneous when it is clearly against the logic and effect of the facts and
circumstances before the trial court. Id. However, Husband has not filed a brief on
appeal. Thus, we may reverse the trial court’s decision upon a prima facie showing of
reversible error. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002). Prima
facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v.
Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).
A trial court has the discretion to diverge from the Guidelines when the evidence
leads the trial court to conclude that the Guideline amount would be unjust. Ind. Child
Support Guideline 3. When a trial court does diverge from the Guidelines, it must
explain its reasons for doing so in writing. Id.; see also Child Supp. G. 3(F),
Commentary (“[i]f the court determines that the Guideline amount is unjust or
inappropriate, a written finding shall be made setting forth the actual basis for deviation
from the Guideline amount. A simple finding . . . is sufficient.”).
Here, Wife takes issue with the trial court’s calculation of Husband’s child support
obligation for the parties’ two children when the court ordered overnight visitation with
only one of the children. In particular, Wife argues that giving Husband credit for ninety-
eight overnights on the worksheet gave him too much credit because the Worksheet
improperly gives him credit for overnight visitation with two children and, thus, inflates
the credit he receives for such visitation on the worksheet.1 We must agree.
1
Wife also contends that, based on the overnight visitation Husband has exercised since the
parties’ physical separation, she does not anticipate that he will fully exercise his overnight visitation.
Because we conclude below that Wife has shown prima facie error in the calculation of the child support
obligation, we need not consider Wife’s argument based on Husband’s past visitation record.
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The Guidelines anticipate that trial courts will use a single Worksheet for all of the
children in a family. And when more than one child is involved, the Guidelines presume
that each child will have the same number of overnight stays with the non-custodial
parent. Id.But the Guidelines do not contemplate situations in which fewer than all of the
children for whom support will be paid will have overnight visitation. We addressed
such a situation in In re Blanford. There, the dissolution court awarded the noncustodial
parent overnight visitation with only one of the parties’ two children. Because only one
child was to have overnight visitation, the court calculated child support using two child
support worksheets, one showing credit for overnight visitation and the other giving no
overnight visitation credit.
On appeal we acknowledged the shortcomings in the Guidelines where parents
have multiple children and fewer than all of them will have overnight visitation.
Specifically, the Guidelines increase the basic support obligation for each additional child
by fifty percent. Blanford, 937 N.E.2d at 361 n.1. But Guidelines Table PT, which
includes a factor for duplicated expenses for overnight visitation, does not differentiate
between the number of children participating in visitation. Instead, it merely designates
the visitation factor based on the number of overnights, and that factor is applied as one
of the adjustments to the child support obligation. Id. at 362; see also Child Supp. G. 6,
Commentary.
In Blanford, we held that the use of a separate worksheet for each child treated
each child as an only child under the Guidelines and, therefore, resulted in a greater child
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support obligation than if support for both children had been calculated using a single
worksheet. 937 N.E.2d at 361. But we also acknowledged that using a single Worksheet
for both children and averaging the parenting time between two children might allow the
non-custodial parent either too much or too little credit in calculating his support
obligations because Table PT merely supplies a factor for crediting duplicated expenses
without regard to the number of children having overnight visitation. Id. Therefore, we
reversed the child support obligation and remanded with the following instructions:
[U]se one worksheet accounting for both children, rather than one
worksheet for each child, and . . . use the basic support obligation for two
children at the appropriate weekly income level for [the father and the
mother]. The trial court should then calculate the overnight parenting time
credit using the basic support obligation for two children, and may adjust
the number of days of overnight credit to reach what appears to be an
appropriate result for setting [the father’s] weekly support obligation.
Because the Guidelines do not afford a basis on which to set the number of
days of overnight credit, the trial court must explain the reasons for its use
of the specific number of days of overnight credit in its order.
Id.Here, the dissolution court used a single Worksheet for both children. That
Worksheet correctly reflects the child support for two children before adjustments. But
the Worksheet gave Husband credit for ninety-eight overnights with both children, while
the Decree awarded overnights with only one child. As explained in Blanford,
calculating the child support obligation in that manner gave Husband more credit than he
was due for overnight visitation with only one of the children. See id. Wife has shown
prima facie error in the child support obligation ordered under the Decree.
We reverse that part of the Decree that sets Husband’s child support obligation
and remand for the dissolution court to recalculate child support in accordance with this
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memorandum decision. We acknowledge that our instructions direct the dissolution court
to use a different method of calculating the basic support obligation than is apparent on
the face of the Child Support Guidelines. In essence, we are instructing the dissolution
court to deviate from the Guidelines. See id. The court must then explain its reasons for
that deviation as explained above. See Child Supp. R. 3; Child. Supp. G. 3(F),
Commentary. The deviation is necessary because the Guidelines do not contemplate or
provide for these circumstances.
Issue Two: Division of the Marital Estate
We apply a strict standard of review to a dissolution court’s distribution of
property. Luttrell v. Luttrell, 994 N.E.2d 298, 301 (Ind. Ct. App. 2013) (citation
omitted). The party challenging the property division must overcome a strong
presumption that the court complied with the statute and considered the evidence on each
of the statutory factors. Id. We will reverse a property distribution only if there is no
rational basis for the award—that is, if the result reached is clearly against the logic and
effect of the facts and circumstances before the court, including the reasonable inferences
to be drawn therefrom. Id. We do not reweigh the evidence, and we consider only the
evidence favorable to the dissolution court’s decision. Id. We will also reverse where
the trial court has misinterpreted the law or has disregarded evidence of statutory factors.
Id. However, again, because Husband did not file an appellee’s brief, Wife need only
show prima facie error. Wright, 782 N.E.2d at 366.
Wife contends that the dissolution court erred when it identified marital property
subject to division and, as a result, when it divided the marital property. It is well-
7
established that all property goes into the marital pot for division, whether it was owned
by either spouse before the marriage, acquired by either spouse after the marriage and
before final separation of the parties, or acquired by their joint efforts. Ind. Code § 31-
15-7-4(a); Beard v. Beard, 758 N.E.2d 1019, 1025 (Ind. Ct. App. 2001), trans. denied.
This “one-pot” theory ensures that all assets are subject to the dissolution court’s power
to divide and award. Thompson v. Thompson, 811 N.E.2d 888, 914 (Ind. Ct. App. 2004),
trans. denied. The dissolution court has no authority to exclude or set aside marital
property but must divide all property. Moore v. Moore, 695 N.E.2d 1004, 1010 (Ind. Ct.
App. 1998).
Indiana Code Section 31-15-7-4 provides, in part:
(a) In an action for dissolution of marriage under [Indiana Code Section]
31-15-2-2, the 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:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
And Indiana Code Section 31-15-7-5 provides: “The court shall presume that an equal
division of the marital property between the parties is just and reasonable. However, this
presumption may be rebutted by a party who presents relevant evidence . . . that an equal
division would not be just and reasonable[.]”
After determining what constitutes marital property, the trial court must then
divide the marital property under the presumption that an equal split is just and
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reasonable, but that presumption may be rebutted. See Ind. Code § 31-15-7-5.2 If the
trial court deviates from this presumption, it must state why it did so. In re Lang, 668
N.E.2d 285, 290 (Ind. Ct. App. 1996). A party who challenges the trial court’s division
of the marital estate must overcome a strong presumption that the court considered and
complied with the applicable statute. Frazier v. Frazier, 737 N.E.2d 1220, 1223 (Ind. Ct.
App. 2000).
Wife argues that the dissolution court erred because it did not equally divide the
marital estate between the parties. Specifically, she maintains that she submitted a list of
marital debts, several of which the dissolution court erroneously failed to include in the
marital pot subject to division. As a result of having failed to include those debts, she
argues, the dissolution court did not divide the estate equally as required by Section 31-
15-7-5, despite the purportedly equal division in the Decree, nor did the court show that
the presumption against an equal division had been rebutted. We cannot agree.
On May 29, 2012, Wife filed her financial declaration, in which she identified
marital debts owed to Lowes, Citi Bank, Kohl’s, Dell, Macy’s, US Bank, and Bank of
America. In June, she listed the same creditors in her answers to Husband’s
interrogatories and response to request for production of documents. However, Wife did
not attach statements from any of the creditors as requested in the request for production.
Husband’s subsequent informal efforts to obtain the documentation and other information
requested from Wife in discovery were unsuccessful. Thus, on August 9, he filed a
motion to compel discovery. On August 14, the dissolution court granted Husband’s
2
Indiana Code Section 31-15-7-5 lists examples of factors that may be used to rebut the
presumption that an equal division of the marital estate is just and reasonable, but those factors do not
apply, nor are they argued, in this case.
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motion and ordered Wife to provide the requested discovery within fourteen days. Later
that month, Wife filed amended discovery responses, but she did not include
documentation of the purported marital debts to Citi Bank, Kohl’s, Macy’s, US Bank,
and Bank of America.
At the final hearing in April 2013, Wife testified as to the balances owed to
Lowes, Citi Bank, Kohl’s, Dell, Macy’s, US Bank, and Bank of America. Husband
objected, arguing that throughout the proceedings he had sought copies of credit card
statements establishing those debts but had received statements only from Lowes and
Dell. The court overruled Husband’s objection to the admission of Wife’s testimony on
the balances owed.
However, in entering the Decree, the dissolution court specifically found that Wife
had “never produced proof of debt on or near [the] date of filing for Kohl[’]s, Citi Bank,
US Bank, Macy’s, and Bank of America” despite an order compelling her to do so.
Appellant’s App. at 2-3. Wife argued at the final hearing that the statements were
unavailable because Wife discarded statements after she made payments. However, a
period of ten months had passed between the first discovery request and the final hearing.
If the debts continued to exist at the time of the final hearing, Wife must have received
creditor statements during that period, but she did not provide them. We note that she
also had sufficient time to obtain duplicates. Again, the recipient of a request for
production of documents must provide documents within the scope of Trial Rule 26(B)
that are in the recipient’s “possession, custody, or control[.]” Ind. Trial Rule 34(A)(1).
Although Wife denied having copies of the disputed charge account statements, those
10
documents were within her control in that she could have requested and obtained copies
from the creditors.
Based on these facts, the dissolution court acknowledged that the “purported
debts” might exist, but the court declined to divide them equally between the parties:
“The Court does not include these purported debts in the marital estate to be divided
which does result in a deviation of [sic] the presumptive equal division if the debts were
actually incurred in the amounts as requested by Wife.” Appellant’s App. at 10.
On its face, the Decree is inherently inconsistent when it purports to divide the
marital estate equally but also provides, in a single sentence that it “did not include these
purported debts in the marital estate to be divided” and that that exclusion “result[ed] in a
deviation of [sic] the presumption equal division if the debts were actually incurred in the
amounts as requested by Wife.” Appellant’s App. at 10. The Decree appears to exclude
the debts from Kohl’s, Citi Bank, US Bank, Macy’s, and Bank of America from the
marital pot and then divide the remainder of the marital estate equally between the
parties. But the trial court also acknowledged that it had deviated from the presumption
of an equal division of the marital estate. In order for a deviation from an equal division
to have occurred, the dissolution court must have considered debts identified but not
proved by Wife to be part of the marital estate and then set them over to Wife without an
equal amount set over to Husband. Again, such a deviation is permissible if the
presumption of an equal division is rebutted. Ind. Code § 31-15-7-5.
We conclude that the dissolution court included Wife’s debts in the marital pot but
then deviated from the statutory presumption of an equal division because Wife did not
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produce proof of those debts. On appeal, Wife confuses the court’s ruling admitting her
testimony on the amounts of the debts in dispute as a judicial recognition of those debts.
Wife is incorrect. While the Decree is not artfully drafted, when read as a whole it
identifies all of the marital property as included in the marital pot, including the debts
Wife asserts were excluded; sets those debts over to Wife without an equal offset to
Husband due to Wife’s failure of proof; and then divides the remainder of the estate
equally between the parties. Wife has not shown error on its face with regard to the
identification of the marital estate and its division.
Finally, in a single sentence, Wife also contends that the dissolution court should
have included in the marital pot Husband’s withdrawal of $105,000 from his 401(k)
during the pendency of the action. But Wife does not support that contention with cogent
argument or citations to supporting authority or to the record. As such, the argument is
waived. See Ind. Appellate Rule 46(A)(8)(a).
Affirmed in part, reversed in part, and remanded with instructions.
CRONE, J., concurs.
BAKER, J., concurs in part and dissents in part with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
MELBA DELORES POLK KING, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A05-1305-DR-248
)
LAWRENCE DELOROSA KING, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael D. Keele, Judge
The Honorable Victoria M. Ransberger, Magistrate
Cause No. 49D07-1202-DR-7753
BAKER, Judge, concurring in part and dissenting in part
While I concur with the majority that the trial court correctly divided the marital
estate, I am forced to part ways with the majority’s determination that the trial court erred
in calculating Husband’s support obligation.
The trial court heard evidence regarding the visitation and overnight visits that
Husband had with children. Although there is no written finding regarding the trial
court’s decision to deviate from the guidelines, I would suggest that the trial court did in
fact have a valid reason for doing so. In my view, reversing the trial court’s
determination is not the most effective avenue for determining the proper amount of
13
support that Husband should pay. Rather, I would remand this cause to the trial court
with instructions that it enter a finding as to why it deviated from the guidelines. See
Claypool v. Claypool, 712 N.E.2d 1104, 1107-1108 (Ind. Ct. App. 1999) (concluding that
although the trial court may have been justified in deviating from the guidelines, it was
clearly erroneous without a specific finding, thereby requiring this court to remand to the
trial court to set forth reasons for any deviations from the guidelines).
14