MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 24 2016, 8:30 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan L. Ciyou Trina Glusenkamp Gould
Darlene R. Seymour Helmke Beams LLP
Ciyou & Dixon, P.C. Fort Wayne, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angela Harris, June 24, 2016
Appellant-Petitioner, Court of Appeals Case No.
02A03-1507-DR-811
v. Appeal from the Allen County
Superior Court
Eric Harris, The Honorable Carolyn Foley,
Appellee-Respondent Special Judge
The Honorable John D. Kitch III,
Special Judge
Trial Court Cause No.
02D07-0207-DR-496
Bailey, Judge.
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Case Summary
[1] In this consolidated appeal, Angela Harris (“Angela”) challenges an order that
she pay attorney’s fees to her ex-husband Eric Harris (“Eric”) and child support
orders pertaining to the parties’ two children, Em.H. and Ev.H. (“the
Children”), who are now both emancipated. We affirm in part; reverse in part;
and remand with instructions.
Issues
[2] Angela presents three issues for our review:
I. Whether the award of $775.00 in attorney’s fees, entered
after this Court reversed a finding of contempt against
Angela, is an abuse of discretion;
II. Whether Angela was entitled to parenting time credit in
the computation of her child support and arrearage; and
III. Whether Eric’s child support obligation was prematurely
terminated.
Facts and Procedural History
[3] Angela and Eric have a long history of litigation regarding custody, parenting
time, and child support. In a prior appeal, a panel of this Court recited the
pertinent facts, a portion of which we reproduce here:
While Angela and Eric Harris were married they had two
children, Em.H., born in August 1996, and Ev.H., born in June
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1997. The couple’s marriage was dissolved in 2005. Angela and
Eric were awarded joint legal custody, Angela was awarded
primary physical custody, and Eric was awarded parenting time
consistent with the Indiana Parenting Time Guidelines. Since
the dissolution, Angela and Eric’s relationship has been
acrimonious at best, and there is a long history of Angela
interfering with Eric’s parenting time.
In March 2012, Eric was awarded physical custody of the
children. In August 2012, the trial court found that Angela had
alienated the children from Eric and stayed the enforcement of
the March 2012 order pending an investigation by a guardian ad
litem. Although the trial court reaffirmed its order awarding Eric
physical custody of the children in January 2013, the children
continued to reside with Angela, and Eric exercised parenting
time.
The trial court held hearings on December 31, 2013, and January
17, 2014, addressing various outstanding petitions including four
contempt petitions by Eric, presumably based on Angela’s
interference with his parenting time, and Angela’s petition to
modify custody. At the conclusion of the January 17, 2014
hearing, the trial court denied Angela’s request to modify custody
and granted the contempt petitions. . . . As a sanction for the
contempt, the trial court sentenced Angela to 180 days in the
Allen County Jail, suspended upon her cooperation with court-
ordered family counseling. . . .
On January 22, 2014, Angela exercised visitation with the
children and, when she returned them to Eric’s house, they
refused to get out of the car. Angela called Eric from her car and
asked him to get the kids, and he responded, “They’re not babies
or invalids. They can get out of the car and come to the door.”
February 12, 2014 Hr. Tr. p. 30. Angela then called the police,
who were unable to get the children out of the car. Eventually
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the police officer instructed Angela “to take the kids and leave.”
Id. at 21.
At some point the children returned to Eric’s house, and Angela
exercised visitation from January 24, 2014, through January 26,
2014. When Eric arrived at Angela’s house to pick up the
children, they went out to Eric’s car and spoke with him but
refused to return to Eric’s house. Angela watched the interaction
from inside the house.
Eric filed two separate contempt petitions for these incidents. On
February 12, 2014, the trial court held a hearing on Eric’s
contempt petitions. Em.H. testified at the hearing that, although
the police officer told her to get out of the car, she just did what
made her happy. See id. at 40. Em.H. agreed that she was
disobeying her mother, her father, and the trial court. . . .
The trial court found Angela in contempt but continued her
suspended 180-day sentence. The trial court also temporarily
abated Angela’s parenting time and ordered her to undergo a
psychological evaluation. . . .
On February 18, 2014, Eric filed a contempt petition alleging that
on February 17, 2014, Angela’s parents picked the children up
from school prior to their dismissal and that Angela then picked
the children up from her parents’ house and failed to return them
to Eric. On March 7, 2014, the trial court held a hearing on this
petition at which Angela appeared pro se. . . .
At the conclusion of the hearing, the trial court found Angela in
contempt and ordered her “confined at the Allen County Jail for
a period of ten days.” March 7, 2014 Hr. Tr. p. 73. . . .
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On March 14, 2014, Angela filed her notice of appeal of the
February 12, 2014 ruling. On April 4, 2014, Angela filed her
notice of appeal of the March 7, 2012 ruling, and the appeals
were eventually consolidated.
Harris v. Harris, No. 02A03-1403-DR-86, slip op. at 2-6 (Ind. Ct. App. Dec. 10,
2014.) This Court reversed the findings of contempt arising from the January
and February 2014 incidents and remanded the matter for necessary findings to
support the suspension of parenting time. Id. at 12.
[4] On September 30, 2014, a few months before the appellate decision was issued,
the trial court held a hearing at which Angela’s parenting time was reinstated,
without supervision. However, Angela was not permitted to take the Children
for overnights. Angela was ordered to pay $165.00 per week in child support,
effective February 12, 2014. She was also ordered to pay attorney’s fees
pursuant to Eric’s Exhibit B. Angela filed a motion to correct error, which was
denied.
[5] On August 4, 2015, the trial court issued an additional order. Pursuant to that
order, the Children (then each eighteen years of age) were to live with Angela,
Eric’s child support obligation was summarily terminated, Angela was ordered
to pay a child support arrearage of $9,422.00, and Eric was awarded attorney’s
fees of $775.00.
[6] Angela appealed the September 30, 2014 order and the August 4, 2015 order.
The appeals were then consolidated.
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Attorney’s Fees
[7] Angela argues that the trial court erroneously ordered her to pay attorney’s fees
that were related to findings of contempt reversed by this Court on appeal.1
[8] In post-dissolution proceedings, the trial court may order a party to pay a
reasonable amount toward an opposing party’s attorney’s fees and, in general,
the decision to grant or deny fees is left to the sound discretion of the trial court.
Bartlemay v. Witt, 892 N.E.2d 219, 231 (Ind. Ct. App. 2008). The trial court
may consider such factors as the resources and respective incomes of the
parties, as well as misconduct on the part of one party that caused additional
attorney’s fees. Id. An abuse of discretion occurs when the decision is clearly
against the logic and effect of the facts and circumstances before the trial court
or where the trial court has misapprehended the law. Id. at 231-32. Where a
portion of attorney’s fees derives from an erroneous finding of contempt,
reversal for recalculation is appropriate. Id. at 232.
[9] In the August 4, 2015 order, the trial court indicated that it had considered “the
resources available to both parties” and “the actions of Mother throughout the
pendency of this action.” (App. at 63.) However, the $775.00 award closely
corresponds to the $726.00 in itemized fees sought for legal work performed in
1
Angela claims that “the First Order should be reversed as it relates to those fees.” Appellant’s Brief at 12.
However, the “first order” award of $4,884.00 in attorney’s fees was for legal work performed through
December 31, 2013. This was prior to the January and February 2014 incidents that gave rise to the
contempt determinations later reversed on appeal. See Respondent’s Exhibit B. Only the fees related to the
reversed contempt determinations are at issue.
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January of 2014. See Respondent’s Exhibit B, pg. “A.” With the exception of
one entry of January 20, 2014 for $66.00, this legal work was performed on or
after January 22, 2014, the date that the Children refused to get out of Angela’s
car. As the attorney’s fees awarded on August 4, 2015 appear to have included
amounts attributable to pursuing non-meritorious contempt citations reversed
on appeal, the award must be re-calculated.
Parenting Time Credit
[10] Angela was ordered to pay $165.00 weekly in child support, beginning in
February of 2014. She now claims that her arrearage should be re-calculated
with a reduction for a parenting time credit. According to Angela, expert
testimony following her psychological evaluation proved her parental fitness to
exercise overnight parenting time and a child support reduction is an
appropriate remedy to address the wrongful denial.
[11] Under Indiana Child Support Guideline 6, a non-custodial parent is to be
afforded credit to his or her child support obligation “for hosting his or her
children overnight.” Sandlin v. Sandlin, 972 N.E.2d 371, 377 (Ind. Ct. App.
2012). During the relevant time period, Angela did not host the Children
overnight and incur related expenses. Thus, she was not afforded a
corresponding credit to her child support obligation and a parenting time credit
was not applied to reduce her arrearage. Angela cites no authority for the
proposition that the omission of a parenting time credit is in the nature of a
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parental sanction subject to reinstatement. We find no error in the trial court’s
calculation of child support or child support arrearage.
Termination of Child Support
[12] In its order of August 4, 2015, the trial court summarily terminated Eric’s child
support obligation. Ev.H. had turned eighteen approximately two months
earlier; Em.H. was one week shy of her nineteenth birthday.
[13] Indiana Code Section 31-16-6-6 provides that a parental duty of child support
terminates when the child attains the age of nineteen, absent conditions not
argued or established in this case. As such, we agree with Angela that the trial
court prematurely terminated Eric’s child support obligation. We remand with
instructions to calculate his child support obligation up to each child’s
nineteenth birthday.
Conclusion
[14] We affirm the order that Angela pay child support of $165.00 weekly. We
remand with instructions to recalculate the attorney’s fees award of August 4,
2015 so as to exclude amounts attributable to the non-meritorious contempt
claims and to calculate Eric’s child support obligation.
[15] Affirmed in part, reversed in part, and remanded with instructions.
Bradford, J., and Altice, J., concur.
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