Opinion
24A-DC-22
10-07-2024
Hurbie Harris, II, Appellant/Respondent v. Gretchen Lackovic, Appellee/Petitioner
ATTORNEY FOR APPELLANT Erik H. Carter Carter Legal Services LLC Noblesville, Indiana ATTORNEY FOR APPELLEE Beth A. Barnes Cross Glazier Reed Burroughs, P.C. Carmel, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Duane Merchant, Magistrate Trial Court Cause No. 49D09-2202-DC-1173
ATTORNEY FOR APPELLANT Erik H. Carter Carter Legal Services LLC Noblesville, Indiana
ATTORNEY FOR APPELLEE Beth A. Barnes Cross Glazier Reed Burroughs, P.C. Carmel, Indiana.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] Hurbie Harris, II ("Father"), and Gretchen Lackovic ("Mother") were married in 2000; had or adopted D.H. (born February 15, 2003), T.H. (born June 8, 2005), and A.H. (born July 1, 2007); and divorced in 2020. A settlement agreement provided, inter alia, that Father and Mother would evenly split the costs of mobile telephones for the children. Mother eventually moved with the children to Virginia. When two of the children's mobile telephones (which had been provided by Father) failed to function satisfactorily in Virgina, Mother procured new telephones with a different carrier, for which Father refused to pay. Father also refused to pay for any portion of T.H.'s automobile-insurance costs after agreeing that he should obtain a driver's license.
D.H. has autism spectrum disorder and tremor epilepsy, which conditions have rendered him mentally incapacitated and unable to support himself.
[¶2] In June of 2022, Father petitioned in Indiana for modification of parenting time. In January of 2023, Mother moved to dismiss Father's petition for modification of parenting time and requested that several orders related to support of the other two children be modified. The trial court granted Mother's motion to dismiss Father's petition to modify parenting time on the basis that it had been filed in the wrong venue and held a two-day evidentiary hearing on all other matters.
[¶3] In December of 2023, the trial court modified the support order moving forward and found that Father had underpaid support in a few respects; awarded Mother $10,000.00 in attorney's fees for expenses incurred in opposing Father's petition to modify parenting time; found that Father had overpaid child support by $16,015.82 due to the emancipations of D.H. and T.H.; found that Father had underpaid mobile-telephone expenses in the amount of $1873.05; and found Father in contempt of court for willfully violating the order regarding mobile-telephone expenses and ordered that he pay Mother $2500.00 in attorney's fees as a sanction, all of which, when tallied, resulted in a judgment entered in favor of Mother for $3351.98. Father contends that the trial court abused its discretion in ordering him to pay (prospectively and retroactively) half of the children's mobile-telephone expenses, 91% of their visitation-related expenses, and 91% of T.H.'s automobile-insurance expenses. Father also contends that the trial court abused its discretion in awarding Mother $10,000.00 in attorney's fees accrued in opposing his petition to modify parenting time and in finding him to be contempt of court for willful violation of a court order to pay for half of the children's telephone expenses. We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[¶4] Father and Mother were married on May 20, 2000, and had or adopted three children during the marriage: D.H., T.H., and A.H. By December 16, 2019, Mother and Father (who by this time had moved to Indianapolis) had requested that the Wisconsin trial court grant them a divorce, which it did, effective January 2, 2020. The parties' marital settlement agreement was incorporated into the judgment, which provided, in part, that Father would pay $2778.99 per month in child support; the parties would be "50/50% responsible for [A.H.'s] and [T.H.'s] cell phone[s], service plan, equipment and repairs [and] Wife shall be responsible for other variable expenses without contribution from husband. Husband shall be responsible for his travel costs for [transfer of] placement."Appellant's App. Vol. II p. 47.
In the settlement agreement and its Attachment A, the term "physical placement" is used to describe what in Indiana is called "physical custody," and what in Indiana is referred to as "visitation" is generally described in terms of a transfer of placement from the custodial parent to the non-custodial.
[¶5] Mother and the children relocated from Wisconsin to Virginia in March of 2020. Mother obtained permanent guardianship of D.H. in Virginia on October 1, 2021. On February 14, 2022, Mother petitioned the trial court to modify child support for continued support of D.H. and travel costs for parenting time pro rata and to hold Father in contempt for his failure to pay (1) his half of A.H.'s and T.H.'s telephone-related expenses; (2) his portion of T.H.'s vehicle, maintenance, upkeep and insurance each month; and (3) his half of all medical, dental, vision, orthodontic, prescription, and other medical expenses of all three children.
[¶6] On June 23, 2022, Father petitioned in Indiana for modification of parenting time. On November 18, 2022, Mother moved to dismiss Father's petition to modify parenting time on the basis that any such petition must be filed in Virginia. On January 13, 2023, Mother withdrew her request for continued support of D.H. and added a request that the trial court modify the parties' pro rata percentages for the cost of the children's telephones, extra-curricular activities, and travel from Virginia to Indiana for parenting time retroactive to February 14, 2022.
[¶7] On January 18, 2023, the trial court granted Mother's motion to dismiss Father's petition to modify parenting time and held the first day of a two-day evidentiary hearing on all other matters. Mother testified that the telephones that had been provided by Father on his T-Mobile account had had issues with dropped calls while the children had still resided in Wisconsin, which had prompted Father to have boosters shipped to Mother's house. Following the move to Virginia, the children had continued to have connectivity issues, with calls dropping at least half the time. On May 29, 2020, Mother had placed the children on her Verizon plan, advised Father of the reasons for the change, and mailed the T-Mobile telephones and boosters back to him. Mother had solely paid the Verizon bill from May of 2020 through April of 2021, when she had advised Father that she could no longer afford to pay the entire bill and asked him to begin paying for half of the Verizon telephones. Father refused to pay half of the Verizon bill because he was angry with Mother for changing the telephone plan.
[¶8] Mother testified that, while Father had agreed that T.H. would take a driver's-education course and obtain his driver's license, Father had not paid for any portion of his automobile insurance. Mother also testified that she had needed T.H. to drive himself to school, work, and after-school activities, as she had been responsible for continuing to drive A.H. to her after-school activities, and there was no public transportation available in her area. Mother also requested that Father be required to pay ninety-one percent of the cost of A.H.'s driver's-education course and insurance.
[¶9] On December 6, 2023, the trial court issued its order on pending matters. The trial court reiterated its dismissal of Father's motion to modify parenting time on the basis that it had been filed in the wrong venue and awarded Mother $10,000.00 in attorney's fees for expenses incurred in opposing it. The trial court also made various rulings on Father's support obligations,
• ordering Father to pay 91% of the costs of T.H.'s automobile insurance and finding that Father had underpaid $4194.75 for this expense between September of 2021 and June of 2023;
• ordering Father to pay 91% of the costs related to A.H.'s travel for visitation with him and extra-curricular activities and finding that Father had underpaid $800.00 for these expenses in 2022 and 2023;
• finding that Father had underpaid mobile-telephone expenses in the amount of $1873.05 between May of 2021 and October of 2023; and
• finding that Father had overpaid child support by $16,015.82 between May of 2022 and October of 2023.
Finally, the trial court found Father in contempt of court for willfully violating the order regarding mobile-telephone expenses and ordered that he pay Mother $2500.00 in attorney's fees as a sanction. All told, the trial court found that Father owed Mother $12,500.00 in attorney's fees and $6867.80 in underpayments, for a total of $19,367.80. Offset against Father's child-support overpayment of $16,015.82, the trial court entered judgment in favor of Mother for $3351.98.
Discussion and Decision
I. Child Support
[¶10] Child support orders may be modified "upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable[.]" Ind. Code § 31-16-8-1(b)(1). We will reverse a trial court's grant or denial of a request for modification of child support only where the court has abused its discretion. Carter v. Dayhuff, 829 N.E.2d 560, 569-70 (Ind.Ct.App. 2005). An abuse of discretion occurs when the trial court misinterprets the law or the decision is clearly against the logic and effect of the facts and circumstances before the court. Id. We do not reweigh the evidence or judge the credibility of the witnesses upon review; rather, we consider only the evidence most favorable to the judgment and the reasonable inferences to be drawn therefrom. Id. at 570.
A. Telephone Expenses
[¶11] Father contends that the trial court abused its discretion in finding him responsible for (and in contempt for failing to pay) half of A.H.'s and T.H.'s mobile-telephone expenses that had been incurred after Mother had obtained Verizon service for them. As mentioned, the settlement agreement incorporated into the divorce judgment provides that the parties would be "50/50% responsible for [A.H.'s and T.H.'s] cell phone, service plan, equipment and repairs." Appellant's App. Vol. II p. 47. Father argues that he should not have to reimburse Mother's telephone expenses because she went beyond the scope of the settlement agreement when she unilaterally secured service for A.H. and T.H. without consulting him and that the trial court abused its discretion in finding him in contempt of court.
[¶12] We cannot agree that Mother's act of obtaining functional mobile-telephone service for A.H. and T.H. went beyond the scope of the settlement agreement. While it is true that the settlement agreement does not specifically allow one parent to unilaterally obtain mobile-telephone service for the children, neither does it specifically forbid it; all it provides is that the expenses should be equally shared. Moreover, it is, we believe, implicit in the settlement agreement that whatever telephones are provided to the children, they should actually be usable, and the record indicates that the telephones Father provided were not, while the ones provided by Mother were.
[¶13] As for the contempt finding, a trial court has authority to use its contempt power only when a parent has the ability to pay the support due and the failure to do so was willful. Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind.Ct.App. 2005). "We will reverse the trial court's finding of contempt where an abuse of discretion has been shown, which occurs only when the trial court's decision is against the logic and effect of the facts and circumstances before it." Id. at 707. When we review a contempt order, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. Father admitted that he had refused to pay for the telephones because he had been angry with Mother for obtaining new telephones for the children and has never claimed that he cannot afford to pay for the Verizon telephones. This is sufficient to support a finding that his disobedience of the Wisconsin trial court's order was willful. The trial court did not abuse its discretion in ordering Father to reimburse Mother for her telephone-related expenses or in finding that Father had willingly refused to abide by the terms of the settlement agreement.
B. Transportation Expenses
[¶14] Father contends that the trial court erred in ordering him to pay a pro rata share of visitation-related travel expenses, both prospectively and retroactively. As mentioned, child support and child-related expense orders are governed by Indiana Code section 31-16-8-1 and may be modified to account for altered circumstances. Meehan v. Meehan, 425 N.E.2d 157, 160 (Ind. 1981). Where, as here, the distance between the parties' residences is a major factor, transportation costs should be shared by considering each party's financial resources, the distance, the reasons for the distance, and each party's family situation. Saalfrank v. Saalfrank, 899 N.E.2d 671, 681 (Ind.Ct.App. 2008); Ind. Parenting Time Guidelines Sec. I(B)(1), Commentary 2; Parenting Time G. Sec III. Child-support modifications will not be set aside unless they are clearly erroneous. Dennison v. Dennison, 696 N.E.2d 88, 90 (Ind.Ct.App. 1998). A judgment is not clearly erroneous unless there is a total lack of supporting evidence or the evidence is undisputed and leads to a contrary conclusion. Id. On appeal, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.
[¶15] We conclude that the record supports the trial court's order that Father pay 91% of visitation-related travel expenses moving forward, specifically, ample evidence of various changed circumstances. First, Mother and the children had moved to Virginia from Wisconsin in March of 2020, presumably increasing the costs of transportation for visitation. Moreover, as of January 18, 2023, Father's income had increased to $3098.85 per week while Mother's was $307.00 per week (making Father's income 91% of their combined incomes). Finally, Father's support obligation has been reduced from $2778.00 per month to $1603.33 per month to reflect the emancipations of D.H. and T.H., leaving Mother with fewer resources to devote to the children in general. In fact, Mother testified that, even if the trial court had declined Father's request to reduce his support obligation (which was ultimately granted), she could no longer afford to pay more than her pro rata share of visitation-related transportation costs. The trial court was entitled to credit Mother's testimony that she could no longer afford to cover 50% of the travel costs and apparently did so. Father's argument is a nothing more than a request to reweigh the evidence, which we will not do. See Dennison, 696 N.E.2d at 90.
D.H. was emancipated when he turned nineteen on February 16, 2022, and T.H. was emancipated when he joined the United States Army at some point between January 18 and August 28, 2023.
[¶16] We conclude that the evidence cited above also supports an award to Mother for Father's underpayment of travel expenses. That said, the record does not reveal how the trial court arrived at an amount of $800.00. The only part of the record that seems to support the trial court's order on underpayment for these items is Mother's "Summary of Requests[,]" admitted as an exhibit at the January 18, 2023, hearing. Ex. Vol. p. 42. In that summary, Mother indicates that "from May 1, 2022 to January 16, 2023, [...] Father owes Mother $378.67 plus 41% of all travel, extracurricular activity expenses, uninsured medical expenses, and medical insurance premiums[,]" or approximately $534.00,which is insufficient to support an award of $800.00. Ex. Vol. p. 42 (emphasis removed). While we acknowledge that this request does not cover expenses incurred between January 16 and December 6, 2023, Mother does not point to (nor are we aware of) anything in the record covering this period. Consequently, we remand with instructions to reduce Mother's award for Father's underpayment of travel expenses to no more than $534.00, which is the largest award the record will support.
It is also unclear how much of this amount is for travel expenses, as it encompasses underpayment for extracurricular activities and uninsured medical expenses as well.
$378.67 x 141% = $533.92.
[¶17] Father makes two specific challenges to the trial court's order as it relates to travel expenses, neither of which is compelling enough to warrant relief. The trial court made the following finding to support its ruling: "Mother currently lives in Manassas, Virginia, which is just outside Washington D.C. where the cost of living is 22% higher than the national average. Father currently resides in Indianapolis, Indiana where the cost of living is 7% lower than the national average." Appellant's App. Vol. II p. 16. Even if we were to agree that there is insufficient evidence in the record to support this finding, any error the trial court may have made in this regard can only be considered harmless. Indiana Trial Rule 61 provides, in part, that "no error or defect in any ruling or order in anything done or omitted by the court [...] is ground for [...] reversal on appeal [] unless refusal to take such action appears to the court inconsistent with substantial justice." The trial court heard evidence that Mother and the children were now living much further away than they were at the time the divorce judgment was entered, Father's earnings were approximately ten times greater than Mother's and that, considering recent reductions in Father's support obligation, she could no longer afford to pay half of the visitation-related travel expenses. This is more than sufficient to support the trial court's support order, making any erroneous cost-of-living-related finding no more than harmless error.
[¶18] Finally, Father contends that the trial court erred in failing to impute Mother's husband's income to her in considering its order on transportation costs. While it is true that a trial court has discretion to impute income to a parent in this context, Mother points out that Father did not make this argument in the trial court and has therefore waived it for appellate consideration. See, e.g., Evans v. Thomas, 976 N.E.2d 125, 128 (Ind.Ct.App. 2012) ("It is well-settled that 'a party may not raise a new argument for the first time on appeal.'") (citation omitted), trans. denied.
C. Automobile-Insurance Expenses
[¶19] Father contends that the trial court abused its discretion in ordering him to pay a pro rata share of T.H.'s automobile-insurance expenses. Pursuant to Indiana Child Support Guideline 8, the trial court has discretion to determine what equals an extraordinary expense of the children, "assigning responsibility for the costs should take into account factors such as each parent's ability to pay, which parent is encouraging the activity, whether the child(ren) has/have historically participated in the activity, and the reasons a parent encourages or opposes participation in the activity." "When both parents agree that the child(ren) may participate in optional activities, the parents should pay their pro rata share of these expenses[.]" Child Supp. G. 8.
[¶20] Father has failed to convince us that the trial court has abused its discretion in this matter. The record contains sufficient evidence to support a finding that Father had consented to T.H. and A.H. obtaining their driver's licenses by paying one half of each child's driver's-education course. The record also supports findings that Mother had been required by Virginia law to add T.H. to her automobile-insurance coverage when he obtained his driving permit and that her insurance costs had more than doubled when he had become a licensed driver. Because having to obtain insurance is a natural and entirely foreseeable consequence of obtaining a driver's license, the trial court did not abuse its discretion in ordering Father to pay a pro rata portion of T.H.'s share of the premiums pursuant to Child Support Guideline 8.
II. Attorney's Fees
[¶21] Finally, Father contends that the trial court abused its discretion in awarding Mother $10,000.00 in attorney's fees for having to defend his motion to modify visitation, which was dismissed for being filed in the incorrect venue. In postdissolution proceedings, the trial court may order a party to pay a reasonable amount for attorney's fees. Julie C. v. Andrew C., 924 N.E.2d 1249, 1261 (Ind.Ct.App. 2010); see also Ind. Code § 31-15-10-1 ("The court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this article and for attorney's fees and mediation services, including amounts for legal services provided and costs incurred before the commencement of the proceedings or after entry of judgment."). A trial court has broad discretion in awarding attorney's fees. Julie C., 924 N.E.2d. at 1261. Reversal is proper only where the trial court's award is clearly against the logic and effect of the facts and circumstances before the court. Id. In assessing attorney's fees, the trial court may consider such factors as the resources of the parties, the relative earning ability of the parties, and other factors bearing on the reasonableness of the award. Id. In addition, any misconduct on the part of a party that directly results in the other party incurring additional fees may be taken into consideration. Id.
[¶22] Here, the attorney's fees at issue were accrued responding to Father's motion to modify visitation, which was denied on the basis that it had been improperly filed in Indiana rather than Virginia. Father contends only that there had been no evidence presented that could have supported the trial court's award of the specific amount of $10,000.00 in attorney's fees. Mother's attorney, however, had prepared an affidavit of attorney fees, which was admitted at the hearing on January 18, 2023, and which indicates that the attorney's fees for opposing Father's motion to modify parenting time had totaled $14,888.25. We have little trouble concluding that the trial court was well within its discretion to award Mother $10,000.00, which is a lower amount than the affidavit of attorney's fees could have supported.
[¶23] The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.
Crone, J., and Tavitas, J., concur.