The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 31 2020, 9:37 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT
Laura A. Raiman
R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald Abner, Jr., March 31, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-DC-2123
v. Appeal from the Jackson Superior
Court
Aurora Abner, The Honorable Bruce A.
Appellee-Petitioner. MacTavish, Judge
Trial Court Cause No.
36D02-1811-DC-249
Mathias, Judge.
[1] Ronald (“Husband”) and Aurora (“Wife”) Abner’s marriage was dissolved in
Jackson Superior Court. Husband appeals and raises several issues, which we
restate as:
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I. Whether the trial court abused its discretion when it failed
to include Wife’s overtime income in its calculation of the
parties’ respective child support obligations;
II. Whether the trial court abused its discretion when it
concluded that Husband’s child support arrearage was
$300.00;
III. Whether the trial court abused its discretion when it
awarded sole legal custody of the children to Wife; and,
IV. Whether the trial court abused its discretion in its
valuation of the parties’ marital assets.
[2] We affirm in part, reverse in part, and remand for proceedings consistent with
this opinion.
Facts and Procedural History
[3] The parties were married in 2009 and have two minor children ages eight and
six on the date of dissolution. On November 14, 2018, Wife filed a petition to
dissolve the marriage in Jackson Superior Court.
[4] Wife and Husband are both employed at a Walmart Distribution Center. Wife
is an hourly employee and is eligible to earn overtime. She generally earned
overtime in most pay periods. Husband is a salaried employee, and he received
an incentive bonus while the dissolution was pending.
[5] The parties’ parenting time arrangement varied throughout the proceedings
depending on the parties’ changing work schedules. On April 16, 2019, the trial
court issued a provisional order granting Wife custody of the children, and
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Father was awarded parenting time. Father was also ordered to pay $156 per
week in child support and one half of the mortgage payment on the marital
residence. Father subsequently filed a motion to correct error arguing that the
trial court incorrectly calculated his child support obligation. The trial court
determined it would address the issue raised in Husband’s motion to correct
error at the final hearing.
[6] On August 8, 2019, the trial court held the final dissolution hearing. The trial
court issued its decree of dissolution on August 28, 2019. Wife was awarded
physical and legal custody of the children, and Husband was awarded parenting
time consistent with the Parenting Time Guidelines. Husband was ordered to
pay $143 per week in child support. The trial court denied Husband’s motion to
correct the trial court’s alleged error in its provisional child support orders.
[7] With regard to division of the marital estate, Wife was awarded the marital
residence, and Husband was awarded two other properties owned by the
parties. Both parties presented appraisal evidence concerning the value of the
properties. The trial court accepted the values proposed by Wife. Each party
was awarded certain vehicles and their individual Walmart 401Ks. The trial
court ordered Husband to make an equalization payment to Wife in the sum of
$11,548.97 via a Qualified Domestic Relations Order. Husband now appeals.
Additional facts will be provided as necessary.
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Standard of Review
[8] First, we observe that Wife has not filed an appellee’s brief. When the appellee
fails to submit a brief, we will not develop an argument on her behalf, but
instead, we may reverse the trial court’s judgment if the appellant’s brief
presents a case of prima facie error. GEICO Ins. Co. v. Graham, 14 N.E.3d 854,
857 (Ind. Ct. App. 2014).
I. Child Support
[9] Husband claims several errors in the trial court’s child support calculation. A
trial court’s calculation of child support is presumptively valid. Young v. Young,
891 N.E.2d 1045, 1047 (Ind. 2008). We will reverse a trial court’s decision in
child support matters only if it is clearly erroneous or contrary to law. Id. A
decision is clearly erroneous if it is clearly against the logic and effect of the
facts and circumstances that were before the trial court. Id.
[10] Husband argues that the trial court’s child support calculation is not supported
by the evidence because the trial court did not include Wife’s overtime income
in determining her weekly gross income. Child support calculations are made
utilizing the income shares model set forth in the Indiana Child Support
Guidelines. In re Marriage of Duckworth, 989 N.E.2d 352, 354 (Ind. Ct. App.
2013). These Guidelines apportion the cost of supporting children between the
parents according to their means. Id. A calculation of child support under the
Guidelines is presumed valid. Id. Indiana Child Support Guideline 3A(1)
provides in part that “weekly gross income” is defined “as actual weekly gross
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income of the parent if employed to full capacity, potential income if
unemployed or underemployed, and imputed income based upon ‘in-kind’
benefits” and that “[w]eekly gross income of each parent includes income from
any source, except as excluded below, and includes, but is not limited to,
income from salaries, wages, commissions, bonuses, overtime, partnership
distributions, [and] dividends[.]” Marshall v. Marshall, 92 N.E.3d 1112, 1117
(Ind. Ct. App. 2018).
[11] Throughout the proceedings, Wife generally earned overtime income during
most pay periods. She earned almost $5000 in overtime income from December
2018 to July 2019. Although the trial court included Husband’s bonus in its
child support calculation, the trial court did not consider Wife’s overtime
income in its child support calculation. We agree with Husband that the trial
court erred when it failed to consider Wife’s overtime income in its calculation
of her weekly gross income when it determined the parties’ relative child
support obligations.
[12] Next, Husband argues that the trial court abused its discretion when it
concluded that his child support arrearage was $300. Specifically, he claims the
erroneous arrearage is the result of the trial court’s incorrect calculation of his
provisional child support obligation. He argues that the trial court miscalculated
his number of overnights and his health insurance credit. Husband also
contends that the trial court should not have awarded Wife a childcare credit
because third-party childcare was not necessary during the proceedings.
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[13] Husband’s argument with regard to the provisional child support calculation
and arrearage is simply a request to reweigh the evidence. Husband and Wife
gave conflicting testimony concerning the number of overnights Husband
exercised with the children. The parties also gave conflicting testimony
concerning Wife’s need for childcare. The parties presented conflicting evidence
concerning Husband’s health insurance premium and the amount of that
premium that should be considered in the child support calculation. The trial
court credited Wife’s testimony and evidence, and our court will not reweigh
that determination on appeal.
[14] In the trial court’s April 16, 2019, provisional order, the trial court determined
that Husband’s child support arrearage was $1370. Appellant’s App. p. 87. And
Husband’s child support obligation was $156 per week. Between April 16, 2019,
and August 7, 2019, Husband owed $2496 in child support, and he paid $3562.
Therefore, his remaining arrearage was $304. Accordingly, the trial court did
not abuse its discretion when it ordered Husband to pay $300 for his child
support arrearage.
II. Child Custody
[15] The trial court’s decisions regarding child custody are reviewed only for an
abuse of discretion. Purnell v. Purnell, 131 N.E.3d 622, 627 (Ind. Ct. App. 2019)
(citing Sabo v. Sabo, 858 N.E.2d 1064, 1068 (Ind. Ct. App. 2006)), trans. denied.
There is a well-established preference in Indiana for granting latitude and
deference to trial judges in family law matters. Id. (citing Steele-Giri v. Steele, 51
N.E.3d 119, 124 (Ind. 2016)). Appellate deference to the determinations of trial
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court judges, especially in domestic relations matters, is warranted because of
their unique, direct interactions with the parties face to face, often over an
extended period of time. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).
Importantly, because our trial judges are required to assess credibility and
character through both factual testimony and intuitive discernment, judges are
“in a superior position to ascertain information and apply common sense,
particularly in the determination of the best interests of the involved children.”
Id.
[16] Indiana Code section 31-17-2-8 provides in relevant part:
The court shall determine custody and enter a custody order in
accordance with the best interests of the child. 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;
(B) the child’s sibling; and
(C) any other person who may significantly affect the
child’s best interests.
(5) The child’s adjustment to the child's:
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(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.
[17] A trial court may award joint legal custody if it finds that joint legal custody is
in the best interest of the child. Ind. Code § 31-17-2-13. Section 31-17-2-15 sets
forth the matters a trial court is required to consider in determining whether
joint legal custody is in the best interests of the child:
[T]he court shall consider it a matter of primary, but not
determinative, importance that the persons awarded joint
custody have agreed to an award of joint legal custody. The court
shall also consider:
(1) the fitness and suitability of each of the persons awarded joint
custody;
(2) whether the persons awarded joint custody are willing and
able to communicate and cooperate in advancing the child's
welfare;
(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) whether the child has established a close and beneficial
relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
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(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the
home of each of the persons awarded joint custody.
[18] The parties did not agree to joint legal custody. Husband argues that the trial
court abused its discretion when it awarded sole legal custody of the children to
Wife because he has maintained an “equal parental contribution in the
children’s lives” since the parties separated. Appellant’s Br. at 19. He also
claims that the parties have agreed to work together to raise the children.
Finally, Husband notes that the trial court did not determine that awarding sole
legal custody to Wife was in the children’s best interests.1
[19] Husband has been involved in caring for the children. But Wife makes the
decisions regarding the children’s attendance at church, medical care, and
school. The parties generally agreed on these issues. Wife testified that Husband
does not communicate with her. There were also occasions during these
proceedings where Husband refused to allow the children to communicate with
Wife while the children were in Husband’s care.
[20] Throughout the proceedings, Wife raised concerns that Husband was
continuing to use steroids and drink excessively, as had been his practice
throughout their marriage. During the proceedings, Husband was ordered to
1
Neither party requested Trial Rule 52 findings of fact and conclusions of law in this case. Moreover, a trial
court is presumed to know and follow the applicable law. See Hamilton v. Hamilton, 132 N.E.3d 428 (Ind. Ct.
App. 2019).
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abstain from drinking twenty-four hours before and while the children were in
his care. He violated the order on at least one occasion. Husband also publicly
posted a picture of himself with the children where he was buried in sand at the
beach but had an item protruding from his groin area. And shortly after the
parties’ separated, Husband began residing with his girlfriend, who is
approximately twenty years his junior, and her infant child.
[21] It was within the province of the trial court to weigh the parties’ evidence while
considering the factors enumerated in Indiana Code section 31-17-2-15. We
cannot conclude that the trial court abused its discretion when it awarded sole
legal custody of the children to Wife.
III. Division of the Marital Estate
[22] The division of marital property is within the sound discretion of the trial court,
and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d
1005, 1012 (Ind. Ct. App. 2014). We will reverse a trial court's division of
marital property only if the result is clearly against the logic and effect of the
facts and circumstances, including the reasonable inferences to be drawn
therefrom. Luttrell v. Luttrell, 994 N.E.2d 298, 301 (Ind. Ct. App. 2013), trans.
denied. When we review a claim that the trial court improperly divided marital
property, we consider only the evidence most favorable to the trial court’s
disposition of the property without reweighing evidence or assessing witness
credibility. In re Marriage of Marek, 47 N.E.3d 1283, 1287–88 (Ind. Ct. App.
2016), trans. denied. “Although the facts and reasonable inferences might allow
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for a conclusion different from that reached by the trial court, we will not
substitute our judgment for that of the trial court.” Id. at 1288.
[23] Husband complains that the trial court adopted Wife’s valuation of the three
parcels of real estate owned by the parties “without explanation.” Appellant’s
Br. at 21. But there was appraisal evidence from both parties concerning the
value of those properties, and it was within the trial court’s discretion to accept
Wife’s proposed valuations. Generally, there is no abuse of discretion if a trial
court’s chosen valuation is within the range of values supported by the
evidence. Del Priore v. Del Priore, 65 N.E.3d 1065, 1076 (Ind. Ct. App. 2016),
trans. denied. “A valuation submitted by one of the parties is competent evidence
of the value of property in a dissolution action and may alone support the trial
court's determination in that regard.” Id. (citing Alexander v. Alexander, 927
N.E.2d 926, 935 (Ind. Ct. App. 2010), trans. denied).
[24] Husband also argues that the trial court abused its discretion when it adopted
Wife’s proposed values for the parties’ three vehicles because Wife did not
know how those proposed values were calculated. First, the parties’ proposed
values for Husband’s Chevy Silverado were $4450 and $5000. Given the slight
disparity between the two values, we cannot conclude that the trial court
abused its discretion when it valued the Silverado at $5000. With regard to the
other two vehicles, neither party presented evidence beyond their respective
opinions of the vehicles’ worth. Husband claims his values were based on the
Kelley Blue Book, but that evidence is not in the record. For this reason, we
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cannot conclude that the trial court abused its discretion when it credited Wife’s
opinion of the value of the vehicles.2
[25] Finally, Husband argues that the trial court abused its discretion when it failed
to value the parties’ personal property. As with their vehicles, the only evidence
presented concerning the value of the personal property that each party retained
from the marital estate was minimal and speculative. Both parties testified that
they kept certain items such as televisions, appliances, and furniture. Given the
lack of evidence of the personal property retained by each party and/or the
value of that property, we cannot conclude that the trial court abused its
discretion when it failed to value and divide that property in its order dissolving
the marital estate.
Conclusion
[26] In his appeal of the trial court’s dissolution order, Husband has requested that
our court reweigh the evidence and credibility of witnesses, which our court
will not do. However, Husband established reversible error in the trial court’s
calculation of the parties’ respective child support obligations because the court
failed to include Wife’s overtime income in its calculation.
2
The trial court found that the parties’ fourteen-year-old Chevrolet Trailblazer had a value of $500. Although
the vehicle runs, Wife testified that it had 220,000 miles and it was not worth more than $500. Final Hearing
Tr. p. 44. Wife also owned the 2006 Jeep Commander prior to the marriage.
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[27] Affirmed in part, reversed in part, and remanded for proceedings consistent
with this opinion.
Kirsch, J., and Bailey, J., concur.
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