Thursday, April 9, 2015

Demonstrate sincerity in child custody modification litigation or get hammered with an attorney fee judgment

The Indiana Court of Appeals issue an opinion in Niccum v Niccum on 08 April 2015 which was heard by the Honorable Patrick R. Miller, Special Judge, of the Wabash Circuit Court. The Court addressed four issues raised by Mother, all of which I find worthy of addressing.

Facts of the Case

First, some background information. Regina and Matthew were married in 2006, and they had a child, H.N, in 2007. Their marriage was dissolved in 2011. At that time, the trial court awarded them joint legal custody of H.N. and awarded Matthew physical custody. The trial court awarded Regina parenting time, “at a minimum, pursuant to the Indiana Parenting Time Guidelines . . . .” App. p. 26. The trial court ordered Regina to pay $125.00 per week in child support. In calculating Regina’s child support obligation, the trial court deviated from the Indiana Child Support Guidelines in part because Regina had five older children, four of whom resided with her full time and one of whom resided with her part time, and her receipt of child support for those children had been irregular. The trial court also considered that Matthew had other family financial support and the likelihood that Regina would have more parenting time than provided for in the Indiana Parenting Time Guidelines.

Appellate Review

As neither party requested special findings and conclusions[en1], the trial court’s findings were issued sua sponte, and they control only as to the issues they cover.[en2] That is, only the findings that are made by the trial court must support the judgment. Otherwise a general judgment standard applies and in that instance the Court will uphold the trial court if it can do so based upon any legal theory.[en3] A judgment may be reversed or vacated upon appeal if it is clearly erroneous. It is erroneous if the evidence does not support the findings, the findings do not support the judgment, or the trial court applies the wrong legal standard to properly found facts.[en4] If special findings and conclusions had been requested then the Court would apply the heightened standard of review requiring the facts to support the finding and the findings to support the judgment. Requesting special findings and conclusions prior to the commencement of trial also allows a party to motion the court to make any corrections prior to filing an appeal.[en5] The Court “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”[en6] The Court may not reweigh the evidence or reassess witness credibility, and must view the evidence most favorably to the judgment. “Appellate deference to the determinations of our trial 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.”[en7] It is because of the importance of the outcome in contested child custody cases that I always recommend special findings and conclusions in my cases. It may cost more money initially but it provides greater protection on appeal and also informs each parent as to why the trial court made the decision it did and how each of the required factors[en8] were considered.

Motion to Continue

On 25 April 2014, the matter was set for a one-day hearing on 10 July 2014. On 29 May 2014, Matthew petitioned for sole legal and physical custody. On 27 June 2014, Matthew filed an objection to any continuances, explaining it had come to his attention that Regina had taken H.N. to one or more counselors in Marion, to a psychologist in Fort Wayne, and to a psychiatric nurse practitioner, Rachel Miller, who ultimately prescribed Zoloft for H.N. Although joint legal custody allows either parent to make the legal decisions for the child[en9] if the parents do not agree then a parent may seek to limit the other parent’s right to make decisions for the child.[en10] Matthew anticipated that Regina was going to move to continue the July hearing because Miller was not available to testify. On 02 July 2014, Regina filed a motion to continue the 10 July 2014 hearing. I recommend that a motion to continue be filed not less than 10 days prior to the scheduled date unless exigent circumstances require otherwise. The unverified motion provided that counsel intended to call Miller as witness, that Miller was not available to testify that day, that documentation created by Miller would not be available in time for the hearing, and that Miller was a “necessary witness for [Regina’s] case.” On 07 July 2014, the trial court denied Regina’s request for a continuance. This then provided little time for a motion to reconsider or a hearing on the continuance although they are often conducted as an initial proceeding on the trial date.

On July 10, 2014, the hearing was conducted. The trial court awarded legal and physical custody to Matthew which is not directly contested in this appeal.

The first problem I see in this background is that Regina did not verify the motion to continue. Next is that there does not appear to be any recitation of attempts to avert a continuance such as seeking testimony through deposition. This simply reeks of lazy lawyering which is unacceptable to me in child custody matters.

The Court essentially found this to be the case in stating that “[t]he motion was not supported by affidavit and did not explain why Miller was necessary to Regina’s case. This bare assertion of necessity was not sufficient to establish good cause for the continuance.” “A trial court’s decision to grant or deny a motion to continue a trial date is reviewed for an abuse of discretion, and there is a strong presumption the trial court properly exercised its discretion.”[en11] Thus, the Court found that the trial court had not abused its discretion and properly denied the motion to continue.

Qualifications of the guardian ad litem [GAL]

On 18 October 2013, Regina petitioned to modify physical custody and terminate her child support obligation. Matthew then requested that Stephanie Gottschalk, who had been appointed as the GAL in the original dissolution proceeding, be reappointed to the case. Regina responded, requesting that someone else be appointed to serve as GAL. In November 2013, the trial court issued an order reappointing Gottschalk as GAL.

At first blush this appears to be akin to forum shopping because Regina apparently wasn’t satisfied with Gottschalk who had recommended previously that Matthew be the primary physical custodian. The decision on appeal doesn’t provide what if any factual allegation Regina made as to why Gottschalk should have been disqualified. In her objection to Gottschalk being reappointed she did contend that “[w]hile [Regina] does not question her qualification, [Regina] would point out that there are many equally qualified Guardian Ad Litems that would be able to serve in this matter.” On appeal however, Regina asserted that Gottschalk was not statutorily qualified to serve as a GAL.

At the hearing Gottschalk testified as a witness for Regina, and her GAL report was discussed by various witnesses and admitted into evidence without objection. Essential to a challenge on appeal is a proper and timely objection. Otherwise the issue is waived.[en12] It was not until closing remarks that Regina’s counsel asserted Gottschalk lacked training that is statutorily required in some circumstances.[en13] Regina’s counsel then challenged Gottschalk’s testimony and report based upon whether she was qualified to be a GAL. On 17 July 2014, the trial court issued an order denying Regina’s challenge to Gottschalk’s qualifications as untimely and unfounded.

The glaring problem I see here is lazy lawyering or a credibility factor. If you don’t feel the witness is qualified then make the objection initially. Don’t call your witness, have her testify and then challenger her qualification because . . . why, it didn’t go well?

The Indiana Supreme Court said it this way:
In general “waiver” connotes an “intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation omitted). And appellate review presupposes that a litigant’s arguments have been raised and considered in the trial court. “To abandon that principle is to encourage the practice of ‘sandbagging’: suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error.” Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 895, 111 S. Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring). Declining to review an issue not properly preserved for review is essentially a “cardinal principal [SIC] of sound judicial administration.”[en14]

The Court in its decision concluded that “Regina may not call for reversal on the basis of Gottschalk’s qualifications because the issue was not properly raised and considered in the trial at a time when the purported error could have be remedied. This issue was waived.”

Modification of Child Support

Although she sought to have child support abated the trial court modified Regina’s child support obligation from $125.00 to $138.00 per week. Regina contends in her appeal that the trial court erroneously modified her child support obligation. She argues that, pursuant to statute[en15], “the trial court can only modify child support if there is both a twenty percent (20%) difference from the prior determination, and the prior determination was issued more than twelve (12) months prior.” This is absolutely erroneous and devoid of comprehension of the child support payment modification statute. I had a case where a petition to modify was tendered to the court within a month of the support order and the payment amount was subsequently modified.

Although it was only is a 9% change the trial court found, “There has been demonstrated a substantial and continuing change in circumstances that makes the previously entered child support Order entered [sic] unreasonable.” In her reply brief Regina contends that “a 9% change . . . was not a continuing and substantial change in circumstances to make the prior award unreasonable[]” and the modification was therefore barred by statute. However, she did not cite any case law or build cogent reasoning to support this contention.[en16]

Regina also argues that the trial court erred in calculating her income at $89,258.00 because it included proceeds from her 401(k) and overtime and did not take into account her other children. In 2013, Regina reported income of $89,258.00, but, according to her testimony, without overtime and cashing in her 401(k), she would have made $56,000.00, her base salary. Regina testified her 2013 income was over $92,000 but she reported $89,258.88 because of contributions to her 401(k). She also testified that, based on her February 8, 2014 paystub, she was on track to earn almost $93,500.00 in 2014. Clearly she wants her adjusted income to reflect contributions to her retirement plan which are thus not considered income but conversely she does not want withdrawals from the retirement plan to be counted as income. Essentially she is asking that she be allowed to hide or subvert income for the purpose of having it considered for child support payment calculations.

Although overtime income may not be properly considered income for child support payment calculations that is a fact sensitive issue which is viewed in its totality and the trial court has discretion whether to include it.[en17] Based upon the consistency of her pay over a three year period the trial court didn’t buy the overtime aberration theory propounded by Regina. Entertain for a moment my pity party for Regina. So tough being ordered to pay $2 less per week than Judge Steve David ordered me to pay for my son which I exercised parenting time with no less than the guideline minimums while having a pretax income of around $11,000 per year.

Attorney Fee Award

The trial court awarded Matthew $9,000.00 in attorney fees. The trial court found that Matthew “has incurred reasonable attorney fees in this matter in the sum of $13,300.00.” In ruling on his request for an attorney fee award of that amount the trial court “considered the resources available to both parties, the economic circumstances of the parties, the abilities of the parties to engage in gainful employment and earn adequate income, whether a party was required to defend an unmeritorious claim, the results achieved by the parties, the complexity of the issues, and other such factors” which are statutorily allowed.[en18] The trial court found that after “[h]aving considered such factors, Mother is ordered to pay an award and judgment of $9,000.00 of reasonable attorney fees to Father, Matthew Niccum which award is in the nature of, and related to child support.”

A determination of attorney fees is within the sound discretion of the trial court and will be reversed only upon a showing of a clear abuse of that discretion.[en19] There was testimony from Matthew about the number of hours his attorney worked on the case at $225 per hour. Another attorney testified that a case of this nature would have cost between $10,000 and $15,000. The Court found that this evidence supports the trial court’s award and that Regina has not established that the trial court abused its discretion in awarding Matthew $9,000.00 in attorney fees. I also add that, while not explicitly stated, the invalid claims that Regina has made upon appeal and her dilatory tactics at the trial level support a belief that she is unjustly being litigious in an attempt to cost Matthew money.


Regina engaged in tactics that perpetuate litigation. She made unfounded arguments and others not based upon cogent reasoning both at the trial court and appellate court levels. She clearly misrepresented the statutory law. She tried to manipulate her income to reduce her child support obligation. Finally, her trial attorney was sloppy and lazy. That final basis is the most relevant. Custody and parenting time hearings are of such great importance that they require due diligence and preparation on the part of parents and attorneys. Those who would approach such matters in a manner inconsistent with the gravity of the potential outcome demonstrate a motive which is not indicative of interest in supporting healthy parent-child relationships.

To get the best trial outcome and to keep a reviewing court from manifesting an opening negative bias child custody modification attempts must be undertaken with the greatest care and preparation. If you are relying upon an attorney to act on your behalf then ensure that the attorney you select is invested in your case as if was his or her child’s outcome depending upon it. Regina did not do this or was not motivated by the best interest of her child.

[1] Ind. Trial Rule 52(B)
[2] Townsend v. Townsend, 20 N.E.3d 877, 879 (Ind. Ct. App. 2014)
[3] A general judgment entered with findings may be affirmed based on any legal theory supported by the evidence, and we presume the trial court followed the law. Rea v. Shroyer, 797 N.E.2d 1178, 1181 (Ind. Ct. App. 2003)
[4] Fraley v. Minger, 829 N.E.2d 476, 482 (Ind. 2005)
[5] It is apparent that Trial Rule 52(B) is intended to afford the trial court an opportunity to amend its own findings prior to the filing of an appeal. Hubbard v. Hubbard, 690 N.E.2d 1219, 1221-22 (Ind. Ct. App. 1998)
[6] Ind. Trial Rule 52(A)
[7] Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)
[8] Ind. Code § 31-17-2-8
[9] Ind. Code § 31-9-2-67
[10] Ind. Code § 31-17-2-17(b)
[11] Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009)
[12] Generally, a contemporaneous objection is required to preserve an issue for appeal. Anderson v State, 653 N.e>2d 1048, 1051 (Ind. Ct. App. 1995)
[13] Ind. Code § 31-9-2-50 (“A guardian ad litem who is not an attorney must complete the same court approved training program that is required for a court appointed special advocate under section 28 of this chapter.”)
[14] Plank v. Cmty. Hosps. of Indiana, Inc., 981 N.E.2d 49, 53 (Ind. 2013)
[15] Ind. Code § 31-16-8-1(b)
[16] Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012) (“A party waives an issue where the party fails to develop cogent argument or provide adequate citation to authority and portions of the record.”); App. R. 46(A)(8)(a) (requiring each contention to be supported by citation to authority)
[17] “Accounting for irregular income under the Guidelines is a fact-sensitive inquiry within a trial court’s discretion.” Schwartz v. Heeter, 994 N.E.2d 1102, 1105 (Ind. 2013)
[18] Ind. Code § 34-52-1-1; Ind Code § 31-15-10-1; Ind Code § 31-16-11-1; Ind. Code § 31-17-7-1; Ind. Code 31-17-4-3
[19] Barger v. Pate, 831 N.E.2d 758, 765 (Ind. Ct. App. 2005) (applying abuse of discretion standard to attorney fee award in a custody modification proceeding)

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Unknown said...

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