Thursday, April 30, 2015

Winning a Child Custody and Support Appeal Requires a Proper Trial Court Foundation

I begin with two foundations for this bit of advice. My credo: Child custody decisions are not about the law, but are judgments based upon parenting skills an behaviours. Appeal [v]: to ask for aid, support, mercy, sympathy, or the like; make an earnest entreaty.

Anyone experienced with trial work or appellate procedure knows the cardinal maxim; failure to object at the trial court level establishes waiver of the issue.[en1] Today however, I examine an appeal from the perspective of that overarching principle of mine which is that child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours. I emphasize behaviour because it is the actions that you take which are critical to legally establishing your parenting role.

Parents, especially those who have their parenting role diminished in the legal context, often lament the judicial process and the discretion afforded to judicial officers. This discretion will not be disturbed save for an abuse of that discretion.[en2] In an appeal the appellant has the burden of establishing that an objective violation -- a misapplication of the law -- or that a subjective violation -- decision was inconsistent with the evidence -- occurred.

I have previously written admonitions to attorneys and parents in my numerous monographs on appeals as that is my legal specialty. I continue to implore parents and practitioners to focus on the pleading basis of the appeal which I want you to think of not in the legal definition but common parlance. That is, to posture in a manner that humbly asks the court to find in your favour. Ideally, this posturing for an effective appeal begins prior to entering the trial court for the first time.

Here I examine the decision in Cody Boruff v Tiffany Boruff, decided 22 April 2015. The underlying cause was heard by the Honorable Lynn Murray, Judge Howard Circuit Court. Cody Boruff holds the quintessential posture which befalls those who chide decision makers into deciding against them.

Cody presented four issues to the Court which all challenged Judge Murray’s findings. These were a denial of his motion to continue the final hearing; his child support obligation calculation; the division of the marital estate; and, the order for him to pay some of Tiffany’s attorney’s fees. The Indiana Court of Appeals [“Court”] upheld Judge Murray on all issued and, as is all too often common, admonished Cody’s appellate counsel.[en3]

Cody and Tiffany were married in May 2012, and one child, K.B., was born of the marriage in July 2012. On 06 August 2013, in an apparent rush to undo that presumed oath for a matrimonial life, Cody filed a petition for dissolution of the marriage. Pursuant to the provisional order, Tiffany had custody of K.B., and Cody exercised parenting time and was obligated to pay child support in the amount of $77 per week. But Cody did not comply with the child support order.

In December 2013, Cody’s attorney withdrew his representation of Cody. On 18 February 2014 Tiffany requested a final hearing on the dissolution petition, as well as a hearing on her affidavit for citation alleging that Cody was in contempt of court for failure to pay child support. The trial court set a hearing on both matters for 27 March 2014 and it ordered Cody “to complete the program and file [the] completion certificate with the Court prior to the hearing.” In other words, get it done within five weeks which clearly is achievable. You’ll see that this wasn’t Cody’s first opportunity. The trial court had originally ordered the parties to complete that program in August 2013, and Tiffany had filed her completion certificate with the trial court on August 26, 2013. Tiffany got it done and filed in under 26 days, some six months earlier.

On 24 March 2014, only three days before the hearing, Cody filed a motion to continue the hearing in order to obtain new counsel to replace counsel who withdrew three months earlier. The trial court granted that motion and rescheduled the hearing for 08 May 2014. On 07 May, being prompt as always, Cody had a new attorney filed her appearance with the trial court on his behalf. That attorney then requested another continuance. The trial court granted that continuance and rescheduled the hearing for 07 August.

Cutting even closer now, on 06 August 2014 Cody moved to continue the hearing scheduled for the next day, 07 August 2014. The trial court granted that motion but stated that “[n]o further continuances will be granted.” The trial court scheduled the hearing for 08 October 2014. The hearing had now been rescheduled to over six months later.

And just as Cody was granted another of his requests to delay the outcome, on 18 August 2014 his attorney filed a motion to withdraw, which the trial court granted. On 06 October, this time an astonishly well in advance and promptly addressed act Cody filed a motion to continue. This was two days before the scheduled hearing and about 6 weeks after his latest attorney withdrew. Rightfully, Tiffany objected and Judge Murray denied that motion as she had previously indicated that she would.

On 08 October the court conducted the final hearing on the dissolution decree and on Tiffany’s affidavit for citation. At the conclusion of the hearing, the trial court asked the parties to submit child support worksheets and proposed orders. Cody did not submit either a child support worksheet or a proposed order to the trial court. While on the subject of Cody’s omissions, guess who still hadn’t complete the activities? On 03 November 2014 the trial court entered the final decree which included; “Petitioner shall complete the [] workshop within seven (7) days of the date of this Decree and submit proof thereof to the Court[] or risk further proceedings for contempt of the Court’s Order.” Cody’s ardent refusal to comply with the order to complete the activities clearly exhibited a behaviour indicating that his is not concerned about the welfare of the child. Additionally, in blunt terms, he was also telling Judge Murray to piss off.

Throughout the period in which a final hearing was pending an income withholding order had been entered against Cody who was not paying any child support. He then voluntarily quit two jobs and sued the first former employer and apparently joined the second in the suit. This must have accounted for him not having time to complete the activities. Just like not complying with the on-line parenting advice, by not paying >b>any child support Cody was again, in blunt terms, telling Judge Murray to piss off.

As to child custody and parenting time -
“Finding from the totality of the evidence presented that such an arrangement is in the best interests of the minor child, the Court places physical custody of the minor child [K.B.] with [Tiffany].”

As to child support -
The court found that Cody testified that he was unemployed from sometime in June 2014, to sometime in August, 2014 although his Facebook page indicated that he obtained the second job sometime in June 2014. [Social Networking sites making their way into the Courtroom] Cody testified that he “just obtained a job” in an undetermined position, for an undetermined wage, for an undetermined duration, and on an undetermined schedule. “The Court does not find such representation, as made, to be credible.” Tiffany tendered a check showing Cody’s regular income at the time of the filing. Cody testified that his “take-home” wage was “a couple of hundred dollars higher than that evidenced by the [check].”

However, despite having received discovery, multiple requests for compliance, an Order Compelling Compliance, and finally a Sanctions Order from the Court, Cody still failed to provide any proof as to the actual extent of his previous wages. His refusal to comply with the rules governing discovery and the Court’s prior Order(s) do not form a basis for relief from the Court’s valuation of his gross income in the absence of evidence to the contrary. Thus, Judge Murray imputed income to him at well under the “couple of hundred dollars higher” that he testified that it was. This may be beating a dead horse but by not complying with discovery orders Cody was, in blunt terms, telling Judge Murray to piss off.

As for division of marital property -
The parties were to follow a relatively standard division of property which is keep what you have in your possession and pay your own debts. Cody’s car had already been repossessed before the dissolution filing so no issue with that although at the time of the final hearing he did have Tiffany’s car which he said was not in operating condition. Tiffany didn’t want the wreck returned. Tiffany specifically got to keep the “55 [inch] LED TV, Xbox, Xbox Kinect, Xbox controllers, Blue Ray [SIC] 3D DVD Player, and all associated accessories for each of those items” which were in her possession. Tiffany was also to pay the outstanding debt on those items as well as credit card debts. Cody was to pay the xfinity claim, unpaid apartment rent, utilities and other incidental debts for which he was being sued. The court considered the contributions of the parties to the marital assets and debts and believe the distribution to be equitable.

As for the contempt citation for child support -
“[T]o the date of the final hearing [Cody] had paid six hundred sixty-two dollars ($662.00) of the four thousand three hundred eighty-nine dollars ($4,389.00) owed—an amount less than twenty percent (20%). [Cody] admitted that he was substantially delinquent and that he had been gainfully employed during the majority of the pendency, but stated that he could not pay the child support because he had “many other debts to pay.” As noted by the Court previously, [Cody] was not paying any of the parties’ joint debts. [Cody] further admitted that since the separation he has been residing in his mother’s home, where [he] is provided with shelter, maintenance and a vehicle—all at no cost to him.”

“The Court finds that [Cody] did intentionally and willfully refuse to pay court-ordered child support when he had the ability to do so. The Court finds [Cody] in indirect contempt of court as a consequence.”

The Opinion

I am not going to go into details of the opinion as there was little, if any, merit to any of Cody’s claims. So inadequate were his arguments that Tiffany did not even waste any effort by filing an Appellee’s brief. Under the reduced standard of review[en4] the Court still upheld Judge Murray’s discretion throughout.

Cody contends that, “[w]ithout legal counsel, [he] was unprepared and ill[-] equipped to represent himself at the contested final hearing.” Thus, he maintained that the trial court abused its discretion when it denied his motion to continue. The Court said, “[w]e cannot agree.”

Next comes, “[b]ut Father ignores the fact that he did not comply with discovery orders regarding proof of his income, and, more importantly, he did not submit a child support worksheet to the trial court.”

Further the Court expresses that Cody’s “sole contention on appeal is, in effect, that the trial court did not properly consider the parties’ economic circumstances at the time of the final hearing. But, again, Father did not comply with discovery or otherwise present evidence regarding his income at the time of the final hearing, and the undisputed evidence showed that he lived with his mother rent-free. [Cody’s] bald assertion that he cannot afford to pay the debts assigned to him, without more, fails to demonstrate that the division of property, including the debts of the marriage, is unjust or unreasonable. The trial court did not abuse its discretion when it divided the marital estate.”

And just more of the same follows with, “because Father was in contempt for failure to pay child support, the trial court did not abuse its discretion when it awarded . . . attorney’s fees.”


Cody Boruff has engaged in what those of us who are familiar with contentious litigation call ‘gaming the system.’ Cody has demonstrated complete contempt for the court whom he invited to resolve the dissolution of his marriage. While he managed to contribute to the creation of his child he seems to have abandoned any desire to fulfill his parenting obligations in place of maintaining an adversarial position against the mother of his child through costly and protracted litigation.

His contempt is not only against the court but his child. He first consented to Tiffany having primary physical custody of their child while he was to exercise minimum parenting time. He also agreed to pay some support to her although she had the higher income. After being subject to an income withholding order he quit two jobs and the court found him to be not credible in his assertions about employment. He continually refused to comply with court orders that he complete the activities at although Tiffany did so nearly immediately. Throughout the time that the final hearing was pending he sought delays for the purpose of costing Tiffany additional attorney fees. Finally, although claiming to have not had money to pay child support he readily paid for an attorney, transcript and filing fee for a frivolous appeal. Fortunately, Tiffany saw its worthlessness and didn’t fall into the trap of defending against it.

I have great respect for Judge Murray because in our conversations it is obvious that she is patient with pro se parents, gives due consideration to everything presented to her, and is substantially concerned with ensuring that her orders truly meet the best interest of the children. She was more patient with Cody than I would have been. I have completed the activities more than him during the same time even though my case is over. I do try to maintain my familiarity with that site as I feel it is the best online activity at reducing parental conflict. I would have ordered Cody jailed on the condition that he be provided access to a computer to complete the activities which would be the “key to his release.”

Cody postured himself as a recalcitrant parent who was engaged in a manipulation of the judicial system in an effort to frustrate Tiffany. He demonstrated a complete lack of dedication to the betterment of his child. It is with this background that he then asks Judge Murray and, subsequently, the Indiana Court of Appeals to rule in his favour. Well, Judge Murray used her broad discretion to rule against Cody’s wishes in a manner that I believe was demonstratively objective. The Court, which will defer to the discretion of the trial court unless such discretion is abused, upheld Murray in all respects. Cody has no valid argument before the Court. For the sake of argument let me explain how Cody would lose even if he had a meritorious claim.

As stated, the Court will uphold the trial court judge unless the conclusions are against the logic and effect of the evidence brought before it. The Court defers to the trial court because the judge is in the best position to assess witness demeanor and credibility.[en5] Judges do make errors or borderline calls that could be reversed on appeal.

Keep in mind that appealing is pleading, begging, asking one for a favour. It is done through legal argument. But, when that argument results in a close call there is a deciding factor which is ultimately the behaviour of the parties. This comes about through an unconscious bias.

Bias and non-legal decisions shouldn’t play into a judicial decision, but they do and here is your reward for reading this far as I explain how. The appellate panel is not the first to read the briefs. The clerks who work for each judge do this. Judges generally do well at maintaining the mandated[en6] neutral stance and will not consciously, at least, let a bias weight for or against a litigant. This is especially true of those who have ascended to the appellate level. But the clerks are students or rather inexperienced lawyers. They have not sat in judgment practicing the role of an unbiased arbiter.

Three clerks each examine the briefs, do the legal research, and then present their opinions to each other. They usually settle upon a unified opinion to present to the panel. They have each developed an opinion of the parties such as Mr. Cody Boruff which was likely that he was menacing the court and filing a frivolous appeal. With an underlying feeling that a parent is being disingenuous at the trial court level it is then tougher to find in favour of that litigant in an equally weighted argument or even when that litigant’s claim may have greater weight. Thus, when a bias is established in the background of the case reviewing the claims becomes rather perfunctory. This is why I open my appeals with the strongest argument so the bias that I am correct is established immediately, thus giving greater weight to my less solid arguments.

It is critical to establish your credibility early on with the court and posture in a manner that demonstrates respect for the court but more importantly that you can rise above the discord with the other parent and behave in a manner consistent with the best interest of the children.

Cody may no effort to appeal to Judge Murray to do anything in his favour. He demonstrated clear contempt for her. Thus, he did nothing for the justices’ clerks or the justices on the panel to find him appealing. Cody Boruff is the paragon of a failure to appeal to the court and will rightfully pay for his disdain of Tiffany, Judge Murray, and the future well-being of his child.

1] We note that a “party generally waives appellate review of an issue or argument unless the party raised that issue or argument before the trial court.” GKC Ind. Theatres, Inc., v. Elk Retail Investors, LLC, 764 N.E.2d 647, 652 (Ind. Ct. App. 2002).
See In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014) (“[T]he ‘[f]ailure to object to the admission of evidence at trial normally results in waiver and precludes appellate review.’”) (quoting Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011)).
See also; Reinhardt v. Reinhardt, 938 N.E.2d 788, 791 (Ind. Ct. App. 2010) (stating that “[u]nder the invited error doctrine, a party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct “).

2] On appeal, we will reverse a trial court’s decision only upon a showing of an abuse of discretion, which occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances. Haley v. Haley, 771 N.E.2d 743, 747 (Ind. Ct. App. 2002).

3] “In fact, Father’s appendix is woefully deficient . . . We remind Father’s counsel to abide by Appellate Rule 50(A)(2) in the future.”

4] When an appellee fails to submit a brief, we do not undertake the burden of developing the appellee’s arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006).

5] 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. Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial 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. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)

6] The role of the trial judge is to serve as a neutral and passive arbiter. See Owens v. State, 750 N.E.2d 403, 409 (Ind. Ct. App. 2001); see also Branham v. Varble, 952 N.E.2d 744, 747 (Ind. 2011) (recognizing trial judge role as neutral arbiter).

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