Marriage of Bojrab v. Bojrab

Attorneys for Appellant Attorney for Appellee

Nana Quay-Smith Stephen P. Rothberg

Karl L. Mulvaney Fort Wayne, Indiana

Candace L. Sage

Denise W. Chavis

Bingham McHale LLP

Indianapolis, Indiana

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__

In the

Indiana Supreme Court

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No. 02S03-0308-CV-365

In Re The Marriage of

Julie Marie Bojrab, Respondent (Appellant

below),

v.

George David Bojrab,

Petitioner (Appellee below).

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Appeal from the Allen Superior Court, No. 02D07-0001-DR-7

The Honorable Charles A. Pratt, Judge

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On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-0204-

CV-127

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June 28, 2004

Dickson, Justice.

In this appeal following a dissolution of the marriage, we hold (1)

that a trial court may not order a prospective custody modification upon

the happening of a future event but it may declare a present custody

determination is conditioned upon the continuation of present

circumstances, and (2) that a party does not waive the right to appeal from

a provisional order for support or maintenance by failing to take an

interlocutory appeal.

The marriage of Julie Marie Bojrab and George David Bojrab was

dissolved by dissolution decree on March 28, 2002. Upon appeal by the wife

and cross-appeal issues by the husband, the Court of Appeals affirmed in

part, and it reversed and remanded in part. Bojrab v. Bojrab, 786 N.E.2d

713 (Ind. Ct. App. 2003). The husband sought transfer, which we granted.

804 N.E.2d 747 (Ind. 2003).

The wife's appeal challenges the trial court's order prohibiting the

mother's relocation, its division of marital property, its ruling on the

motion to correct error, and its computation of child support. The

husband's cross appeal alleges that the trial court used dissimilar

methodology in dividing certain similar marital assets, failed to adjust

the marital estate to reflect the husband's significant decrease in income

following entry of provisional orders for support and maintenance, failed

to adjust the property division to reflect the husband's protracted

temporary payments to or for the wife out of his post-petition property,

and failed to consider in the division of the marital property the wife's

waiver of a substantial inheritance from her father during the marriage.

Having granted transfer, we elect to address only two issues: (1)

conditional prospective custody modification and (2) waiver of challenge to

denial of retroactive modification of provisional maintenance and support.

As to all other issues, the Court of Appeals is summarily affirmed pursuant

to Indiana Appellate Rule 58(A)(2).

1. Conditional Prospective Custody Modification

The March 28, 2002, thoughtful dissolution decree included extensive

findings of fact and conclusions of law regarding the custody of the

parties' three children, then ages eight, six, and four. Among its sixty-

five findings of fact regarding the parties' children, the trial court

found that "both parties love and care for the children"; that both are

"appropriate and able to serve as the custodial parent of the children";

that both "have been active in the care of the children"; that the

continued involvement of the husband, a physician, in the decisions

regarding the children's medical care "will aid in assuring their greatest

level of care"; that despite "accusations of domestic violence, the

[husband] has been a caring and nurturing father and poses no risk to the

children when they are in his care"; that the parties have stipulated that

the best interests of the children are served by granting the wife custody

of the children; that the wife desires to relocate with the children to

Livonia, Michigan, approximately 160 miles (two and a half hours of travel

time) from the husband's residence; that both Livonia, Michigan, and Allen

County, Indiana, offer equivalent resources and youth development

opportunities; that both Livonia and Allen County offer the presence of

numerous supportive family members with whom the children have a close and

positive relationship; that early in their marriage, the parties decided to

reside and raise their family in Allen County, but "over time, the [wife]

pined for relocation to her hometown of Livonia"; and that the wife's

"desire to live in Michigan was the primary cause for the parties'

arguments." Appellant's Appendix at 150-55. The court received and

considered custody evaluations from two clinical psychologists, one

presented by each party.

The decree expressly noted that the case of Hanks v. Arnold, 674

N.E.2d 1005 (Ind. Ct. App. 1996), affirmed a trial court's order to

continue the custody of the child with the mother unless she relocated,

"whereupon, [the father] would become the custodial parent." Appellant's

Appendix at 161, quoting Hanks, 674 N.E.2d at 1007. The trial court in the

present case concluded in pertinent part:

6. The children need regular, consistent, and quality contact with

their father.

7. The best interests of the children are served by granting the

[wife] custody of the parties' minor children so long as the residence

remains in Allen County, Indiana.

8. The [husband] should be granted parenting time with his children

as set forth in the Indiana Parenting Time Guidelines provided

however, that the [husband] be afforded deviations therefrom as may be

required by virtue of the time demands of his profession

in the medical field.

Appellant's Appendix at 162. While the wife proposed that she reside with

the children in the four-bedroom home of her mother in Livonia, the trial

court noted that, remaining in Allen County, the wife would "need

additional resources to establish a new home for herself and the children"

and ordered a division of the marital estate, awarding the wife a 60%

distribution under these circumstances. Appellants Appendix at 163. Based

upon its findings and conclusions, the trial court ordered, in part:

[The wife] is granted the custody of the parties' minor children . . .

. The best interests of the children are served by requiring that they

remain in the Allen County, Indiana community. Accordingly, the grant

of custody of the parties' minor children is subject to maintaining

their residence in Allen County, Indiana. In the event the [wife]

decides to relocate outside Allen County, Indiana, without the

agreement of the [husband] or further order of this court, custody of

the children shall be granted to the [husband]. . . . The [husband] is

granted parenting time with his children . . . . In the event the

[wife] foregoes custody and moves to Livonia, Michigan, then the

Indiana Parenting Time guild-

lines will be applicable to her.

Id. at 164-65.

Of the wife's several arguments regarding the trial court's order

relating to the relocation of the children's residence, we focus only on

her contention that the trial court erred in granting an automatic change

of custody prospectively upon her future relocation. She argues that the

order completely disregards the trial court's statutory obligations to

grant a change of custody only upon finding both that there is a

substantial change regarding enumerated factors and also that the

modification is in the best interests of the child. Indiana Code § 31-17-2-

21.

On this point, the Court of Appeals acknowledged that the prospective

change allegedly ordered would probably violate the statute "if the

language at issue in the trial court's dissolution order were applied in

the future to enact an automatic change in custody of the children."

Bojrab, 786 N.E.2d at 730. But its opinion explained:

[T]he trial court's order can be read to indicate either present or

future application. To have only a present impact, the trial court's

order would have had to read something like: "If Wife is staying in

Allen County, then custody of the children is granted to Wife.

However, if Wife is moving to Michigan, then custody of the children

is granted to Husband." Rather than explicitly using present tense,

the trial court's order provides that custody "shall be granted" to

Husband if Wife "decides to relocate," which can be read to indicate

that custody automatically would shift to Husband if Wife decides to

relocate at

any time in the future.

Id. at 729. Concluding that such eventuality was "not before us today,"

id. at 730, the Court of Appeals interpreted the order "to be only a

current denial of [the wife's] petition to move the children to Livonia,"

id., which it found was not erroneous and was supported by sufficient

findings. Id. at 735.

We agree that a trial court may not prospectively order an automatic

change of custody in the event of any significant future relocation by the

wife. The decree does contain language ordering that, in the event the

wife unilaterally decides to relocate outside Allen County, Indiana,

"custody of the children shall be granted to the [husband]." Appellant's

Appendix at 164. This language is inconsistent with the requirements of

the custody modification statute, Indiana Code § 31-17-2-21.[1]

Immediately preceding such language declaring a conditional future change

of custody, however, the decree states: "the grant of custody of the

parties' minor children is subject to maintaining their residence in Allen

County, Indiana." Appellant's Appendix at 164. There is a significant

difference between the two phrases. One purports to automatically change

custody upon the happening of a future event; the other declares that the

present award of custody is conditioned upon the continuation of the

children's place of residence. While the automatic future custody

modification violates the custody modification statute, the conditional

determination of present custody does not. The latter is a determination

of present custody under carefully designated conditions. Upon a violation

of said conditions by the wife as custodial parent, the basis for the

custody order is undermined, and the husband may seek a change in custody

pursuant to the custody modification statute. This is consistent with the

operation of Indiana Code § 31-17-2-23, which establishes procedures that

apply when a person who has been awarded child custody intends to relocate

outside Indiana or more than 100 miles from the existing residence. The

statute calls for a notice by the relocating party and, upon request of

either party, "a hearing for the purposes of reviewing and modifying, if

appropriate, the custody, visitation, and support orders." Ind. Code § 31-

17-2-23(b) (emphasis added). Construed in this manner, the trial court's

custody order is not improper. We understand this to be the position of

the Court of Appeals, which we find correct.

In a separate issue, the Court of Appeals held that in restricting the

wife from relocating outside of Allen County, the trial court imposed a

requirement more restrictive than the requirements for notice provided by

Indiana Code § 31-17-2-23,[2] and remanded for modification accordingly.

The husband did not challenge this determination in his petition to

transfer.

2. Denial of Provisional Order Modification

Contending that his real income considerably decreased during the two-

year pendency of the dissolution proceedings, the husband contends that the

trial court erroneously declined to retroactively modify its order for

provisional maintenance and child support by effecting the requested

reduction through "adjustment in the final distribution of the marital

estate." Br. of Appellee at 43.

The petition for dissolution was filed by the wife on January 10,

2000. On February 2, 2000, the trial court's provisional orders required

the husband to pay child support of $679.73 per week, granted the wife

exclusive possession of the marital residence, and ordered the husband to

pay the monthly mortgage indebtedness. Additional provisional findings

were entered on August 29, 2000, including an order that the husband pay

maintenance to the wife in the sum of $4,000 per month retroactive to

January 10, 2000. Supplemental Appendix of Appellant at 4-5. This

determination was based on the husband's 1999 annual income plus his 2000

bonus to the date of the hearing although the husband testified "that he

may leave his employment at Preferred Anesthesia consultants, Incorporated

(PAC) in the near future." Id. at 6. The husband points to a separate

order entered August 29, 2000, stating in part:

That the [husband] shall be given leave to present testimony and

evidence on the issue of the alleged change in his financial

circumstances since the presentation of testimony and evidence on

provisional matters. . . .

That the maintenance order entered this date, August 29, 2000, shall

continue in effect, however, the Court advises that said Order is

based on the parties' incomes from the period of January 10, 2000,

through July 31, 2000. In the event that at trial, the court

determines that a modification of the maintenance order is

appropriate, any amount of overpayment towards the maintenance award

shall be deducted from the [husband's]

maintenance arrearage.

Appellee's Supplemental Appendix of June 23, 2004, at 2. He contends that

the trial court viewed its maintenance order of August 29, 2000, order "as

a modifiable order, subject to revision on a retroactive basis, and that

the trial court intended to hear evidence on the issue at trial with an eye

toward modifying the order if the evidence supported modification." Id. at

10.

The final decree did include findings summarizing the obligations

imposed by the provisional orders of February 2 and August 29, 2000. The

decree also found that on July 31, 2000, the husband "voluntarily

discontinued his employment with PAC . . . whereby he surrendered his

partnership and ownership interest," and on August 1, 2000, "began

providing pain management services through Pain Management Associates

(PMA)," an entity formed and owned by the husband and another former

employee/shareholder/partner of PAC. Appellant's Appendix at 156. The

decree expressly found that the husband "could have chosen to continue his

employment, partnership and shareholder status with PAC and [to] provide

general anesthesia services, but not pain management services," id., that

the husband "likely would have taken financial measures to maintain the

standard of living for his wife and children during the transition from his

employment with PAC to PMA," that the indebtedness incurred by the husband

during the pendency is "not an unreasonable hardship" and that the husband

"had the financial ability to pay his maintenance obligations as previously

ordered." Id. at 157. The final decree ordered that "the [husband's]

prayer to retroactively modify the provisional orders is denied." Id. at

165.

The husband contends that the trial court erred in refusing to

retroactively reduce his provisional obligations so as to reflect his "real

income." Br. of Appellee at 42. He urges that during the start-up time

associated with the opening of his new practice in pain management, he

lacked the means to pay the provisional maintenance and support orders.

Arguing that the evidence established that he was entitled to a reduction

in his temporary support obligation, the husband urges that the trial court

erred in declining to grant such reduction through an adjustment of the

final distribution of the marital estate.

The Court of Appeals declined to address this contention, noting that

Indiana Appellate Rule 14(A) provides that interlocutory orders for the

payment of money may be appealed as a matter of right by filing a notice of

appeal within thirty days of the interlocutory order. Because an order of

temporary support and maintenance is an order for the payment of money, the

Court of Appeals held that by failing to appeal within thirty days

following the denial of his request for modification, the husband "waived

any error that occurred, and he may not now appeal the interlocutory order

on appeal of the final judgment." Bojrab, 786 N.E.2d at 721.

Shortly after the Court of Appeals issued its decision, we decided

Georgos v. Jackson, 790 N.E.2d 448 (Ind. 2003), which held that, even

though an interlocutory order may be appealable as of right under Appellate

Rule 14(A)(2), there is no requirement that an interlocutory appeal be

taken. Id. at 452. A claimed error in an interlocutory order is not

waived for failure to take an interlocutory appeal but may be raised on

appeal from the final judgment. Id.[3], [4]

As to the merits of the husband's challenge to the trial court's

decision not to retroactively modify support and maintenance, we find no

error. Here the trial court found that the husband voluntarily left one

position for another and that he could have remained at his prior position,

that he would have taken financial measures to maintain the standard of

living for his wife and children during the transition, and that he had the

capacity to finance the support and maintenance during this time. While

legitimate reasons may exist for a parent to leave one position and take a

lower paying position other than to avoid child support obligations, this

is a matter entrusted to the trial court and will be reversed only for

abuse of discretion. See Elliott v. Elliott, 634 N.E.2d 1345, 1348-49

(Ind. Ct. App. 1994); Ullery v. Ullery, 605 N.E.2d 214, 215 (Ind. Ct. App.

1992). Considering the facts most favorable to the judgment without

reassessing credibility or reweighing the evidence, we cannot say that the

trial court abused its discretion in the present case.

Conclusion

Because we hold that the trial court order does not order a

prospective custody modification upon the happening of a future event but

only conditions a present custody determination upon the continuation of

present circumstances, we affirm the trial court order in this regard. We

also hold that the husband did not waive the right to appeal from a

provisional order for support or maintenance by failing to take an

interlocutory appeal, but that the trial court did not abuse its discretion

in denying his request for retroactive modification in the final decree.

In all other respects we summarily affirm the opinion of the Court of

Appeals, under which the trial court is affirmed in part, and reversed and

remanded in part.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

-----------------------

[1] Indiana Code § 31-17-2-21 provides:

(a) The court may not modify a child custody order unless:

(1) the modification is in the best interests of the child; and

(2) there is a substantial change in one (1) or more of the

factors that the court may consider under section 8 and, if

applicable, section 8.5 of this chapter.

(b) In making its determination, the court shall consider the

factors listed under section 8 of this chapter.

(c) The court shall not hear evidence on a matter occurring before

the last custody proceeding between the parties unless the matter

relates to a change in the factors relating to the best interests of

the child as described by section 8 and, if applicable, section 8.5 of

this chapter.

Ind. Code § 31-17-2-21. Section 8 directs that custody determinations

shall be made in accordance with the best interests of the child, which

shall include consideration of all relevant factors, including:

(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:

(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.

(8) Evidence that the child has been cared for by a de facto

custodian, and if the evidence is sufficient, the court shall

consider the factors described in section

8.5(b) of this chapter.

Ind. Code § 31-17-2-8. Section 8.5 applies only where a child has been

cared for by a de facto custodian.

[2] Indiana Code § 31-17-2-23 provides in part as follows:

(a) If an individual who has been awarded custody of a child

under this chapter intends to move to a residence:

(1) other than a residence specified in the custody order; and

(2) that is outside Indiana or at least one hundred (100) miles

from the individual's county of residence;

the individual must file a notice of the intent to move with the clerk

of the court that issued the custody order and send a copy of the

notice to a parent who was not awarded custody and who has been

granted visitation rights . . .

[3] The effect of Georgos is to overrule prior decisions that held

orders for temporary maintenance or support (being orders for the payment

of money and thus appealable interlocutory orders) must be immediately

challenged by interlocutory appeal, and that the failure to do so waives

the right to assert such challenge in an appeal from final judgment. See,

e.g., Crowley v. Crowley, 708 N.E.2d 42, 50 (Ind. Ct. App. 1999); Burbach

v. Burbach, 651 N.E.2d 1158, 1162 (Ind. Ct. App 1995); Indiana High School

Athletic Assoc. v. Raike, 164 Ind.App. 169, 191, 329 N.E.2d 66, 80 (1975).

[4] Even in the absence of our holding in Georgos, we would disagree

with the Court of Appeals determination that the husband is erroneously

appealing from an interlocutory order. He is not appealing from an

interlocutory provisional order but from the final judgment. His request

for retroactive modification of provisional maintenance and child support

was not made in a pre-trial motion to modify but was presented as part of

the final trial, and the trial court denied the request as part of its

final dissolution decree. Neither of the authorities cited by the wife and

the Court of Appeals apply to modification decisions made as part of a

final decree. See Crowley v. Crowley, 708 N.E.2d 42, 50 (Ind. Ct. App.

1999) (appeal from interlocutory provisional order entered five months

before final decree); Burbach v. Burbach, 651 N.E.2d 1158, 1162 (Ind. Ct.

App 1995) (appeal from denial of interlocutory petition to modify

provisional order entered four months before final decree).