MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 30 2019, 9:43 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cassandra A. Kruse Denise F. Hayden
EMSWILLER, WILLIAMS, NOLAND & LACY LAW OFFICE, LLC
CLARKE, LLC Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
C.B., January 30, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-DC-1547
v. Appeal from the Hendricks
Superior Court
L.B., The Honorable Mark A. Smith,
Appellee-Petitioner. Judge
Trial Court Cause No.
32D04-1703-DC-165
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019 Page 1 of 12
Case Summary
[1] C.B. (“Husband”) appeals the trial court’s Findings, Conclusions, and Decree
of Dissolution, following a bifurcated bench hearing.
[2] We affirm in part, reverse in part, and remand with instructions.
Issues
[3] Husband raises three issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion when it denied
Husband’s claim for spousal maintenance.
(2) Whether the trial court erred in deviating from the
presumptive child support obligation.
(3) Whether the trial court abused its discretion when it awarded
L. B. (“Wife”) $250.00 for attorney fees incurred in moving to
compel discovery responses.
Facts and Procedural History
[4] Husband and Wife (collectively, “Parties”) were married on August 14, 2004,
and had one child, E.B., born September 28, 2008. Until May of 2012, Parties
both worked full-time. In May of 2012, Husband was involved in a serious
accident at his place of employment. His injuries required surgery and other
treatments and left him unable to work for a period of time. During that time,
Husband received Worker’s Compensation benefits which he used to pay
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marital expenses, such as the mortgage on the family home. Husband also
received over $100,000 in life insurance proceeds when his grandfather died in
2016.
[5] On March 10, 2017, Wife filed a petition for dissolution of the marriage.
Parties had a final dissolution hearing on March 16 and March 23, 2018. On
May 4, 2018, the trial court issued “Findings of Fact, Conclusions[,] and
Decree of Dissolution.” Appealed Order at 1. The trial court ordered that
Parties were to have joint legal custody of E.B., with Mother having primary
physical custody. Father was granted parenting time pursuant to the Indiana
Parenting Time Guidelines, with additional midweek overnight parenting time.
In addition, the trial court made the following relevant findings:
***
44. Wife earns approximately $54,000/year gross income, or
$1,038.00/week.
45. Husband currently has no weekly income. He has not
worked full-time since a work-related accident in 2012. He has
applied for disability and was denied. However, he never applied
for disability until August 2017, after the filing of the Petition in
this case. By his own admission, Husband has not actively
looked for any work that could accommodate him.
46. Wife provides health insurance and dental insurance for
[E.B.] at a cost of $23.15 per week. Wife shall continuance [sic]
to provide health and dental insurance [for E.B.] for so long as it
is offered to her through her employment at a reasonable cost.
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47. In May 2012, Husband was involved in a serious forklift
accident at work. The accident left Husband severely injured and
Husband had to have several surgeries and treatment over the
course of nearly three (3) years.
48. Husband requested spousal maintenance pursuant to I.C. §
31-15-7-2 of $2,000/month. According to Husband, he is unable
to work. He testified that he suffers from intense pain and
swelling in his left leg, and depression. Husband testified that he
feels paralyzed from his knee down. He claims [that he is]
having difficulty walking or moving around easily.
49. Doctor Andrew Campbell is Husband’s family medical
doctor. He has treated Husband since 2011. He described
Husband as having a chronic left sciatic nerve lesion due to a
remote injury.
50. Husband has a history of deep vein thrombosis. However,
this is not a current diagnosis and he is not currently having any
symptoms of the same.
51. Husband is overweight. As of March 2, 2018, Husband
weighed over 400 pounds. Any functional limitations are
compounded by Husband’s weight. Husband sees a weight
specialist to address his weight issues.
52. Husband takes multiple medications and sees a
psychologist for depression. Husband is currently treating with
Dr. Mossbarger for depression. Husband has been cooperative in
his treatment for depression and his symptoms are being
managed by both medicine and therapy.
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53. While Husband has expressed some difficulty with getting
himself out of bed due to his depression, there was no indication
that he is unable to parent [E.B.].
54. Husband was able to do some work after his injury when
he helped Wife work her second job of data entry in 2014.
55. Husband told the GAL [Guardian ad Litem] that he did
not want to apply for disability and that he preferred to work. He
further indicated to the GAL that he only needed minor
accommodations.
56. Husband has had the exclusive access to and use of over
$100,000 from his grandfather’s life insurance proceeds that is
being apportioned to him in the final division of the marital
estate. The proceeds were received just before the date of final
separation.
57. As of the final hearing, Husband had $6,000.00 in savings
and $1,000.00 in checking.
58. Considering I.C. § 31-15-7-2, the Court finds Husband’s
request for permanent spousal disability maintenance should be
denied. Husband’s request for $2,000/month to be paid is
wholly unreasonable. [Wife] only makes $54,000.00 per year
gross income. Husband’s request was for Wife to pay him
approximately 44% of her gross income. Moreover, the
evidence, including his medical records, does not support a
finding of a permanent disability preventing Husband from
returning to any form of work. Exhibit 40 provides a detailed
summary of Husband’s progression from being unable to work
when he initially went to Ortho Indy on June 6, 2012 to being
“able to return to full duty work status with no restrictions” as of
May 11, 2015.
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59. It is appropriate to impute to Husband minimum weekly
gross income of $290.00 consistent with full-time minimum wage
for purposes of child support.
60. Application of the Child Support Guidelines results in a
recommended $50.00 per week obligation to be paid by Wife to
Husband.[1] However, the Court deviates and orders a $0.00
child support obligation at this time because Wife will be paying
all controlled expenses.
61. Wife shall be responsible for the first $600.00 in annual
uninsured healthcare expenses for [E.B.]. The balance shall be
split with Wife paying 78% and Husband paying 22%.
***
78. Wife requested that Husband be ordered to pay her $250
in attorney fees because of a discovery dispute that resulted in
Wife filing a Motion for Order Compelling Discovery on June
24, 2017. The Court finds Wife’s requested $250.00 in expenses
reasonable. Therefore, the Court orders Husband to pay Wife
$250.00 in 30 days from this order for her filing the Motion for
Order Compelling Discovery on June 24, 2017.
***
Appealed Order at 6-8, 13. Husband now appeals.
1
The order is not accompanied by a child support worksheet. The record contains two child support
worksheets (Ex. Vol. 4, Exs. 34 and 35), although it appears that neither of those worksheets were used by
the trial court in its ultimate child support calculation, as neither worksheet results in a recommended $50.00
per week obligation to be paid by Wife.
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Discussion and Decision
Spousal Maintenance
[6] Husband challenges the trial court order denying his request for spousal
maintenance. We review such an order for an abuse of discretion and we will
reverse only if the decision is clearly against the logic and effect of the facts and
circumstances of the case. E.g., Augspurger v. Hudson, 802 N.E.2d 503, 508 (Ind.
Ct. App. 2004). Moreover, where, as here, the trial court enters findings of fact
and conclusions of law pursuant to Indiana Trial Rule 52, we will set aside such
findings “only if they are clearly erroneous in that the record is devoid of facts
or inferences to support the findings, or that the judgment is unsupported by the
findings.” Id. at 509 (quoting Fuehrer v. Fuehrer, 651 N.E.2d 1171, 1173 (Ind.
Ct. App. 1995), trans. denied). In making such a determination, we neither
reweigh the evidence nor reassess the credibility of the witnesses. Id.
[7] Indiana Code Section 31-15-7-2 allows a court to award a spouse post-
dissolution “incapacity maintenance” if the court “finds a spouse to be
physically or mentally incapacitated to the extent that the ability of the
incapacitated spouse to support himself or herself is materially affected.” See
also Palmby v. Palmby, 10 N.E.3d 580, 583 (Ind. Ct. App. 2014). Here, the trial
court found that Husband was able to work. Citing Husband’s medical records
from Ortho Indy in Exhibit 40, the trial court noted those documents state that,
as of May 11, 2015, Husband was “able to return to full duty work status with
no restrictions.” Confidential Ex. Vol. V, Ex. 40. The court also noted that
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Husband admitted that he has “not actively looked for any work that could
accommodate him” and that he “only needed minor accommodations” to
work. Appealed Order at 6, 7. Furthermore, the court found that Husband
had, in fact, done some work after his injury when he helped Wife with her data
entry job. All of that evidence supports the trial court’s finding that Husband
does not have “a permanent disability preventing Husband from returning to
any kind of work.” Id. at 8. And that finding supports the trial court’s
conclusion that Husband’s request for spousal maintenance should be denied.
Husband’s assertions to the contrary are merely requests that we reweigh the
evidence, which we cannot do. Augspurger, 802 N.E.2d at 508.
Child Support Calculation
[8] Husband challenges the trial court’s calculation of child support. On review,
we afford the trial court broad discretion in fashioning child support orders, and
we will reverse only if the child support determination is clearly against the
logic and effect of the facts and circumstances. E.g., Fields v. Fields, 749 N.E.2d
100, 104-05 (Ind. Ct. App. 2001), trans. denied. Moreover, “weight and
credibility issues are disregarded and only the evidence and reasonable
inferences favorable to the judgment are considered.” Id. (citing Kinsey v.
Kinsey, 640 N.E.2d 42, 43-44 (Ind. 1994)). And we set aside the trial court
findings only if they are clearly erroneous. Ind. Trial Rule 52(A).
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[9] Husband contends that the trial court erred when it reduced Wife’s $50 child
support obligation2 to $0 “because Wife will be paying all controlled expenses.”
Appealed Order at 8. He asserts that reduction was erroneous because Wife’s
payment of the controlled expenses is already factored into the child support
obligation. We agree.
[10] Indiana’s Child Support Guidelines (“Guidelines”) “are based on the
assumption the children live in one household with primary physical custody in
one parent who undertakes all of the spending on behalf of the children.”
Guideline 6, Analysis of Support Guidelines cmt. The Guidelines define
“controlled expenses” as “items like clothing, education, school books and
supplies, ordinary uninsured health care[,] and personal care.” Id., Controlled
Expenses cmt. The controlled expenses are “the sole obligation” of the
custodial parent who does not receive a parenting time credit. Id., Analysis of
Parenting Time Costs cmt. These controlled expenses “account for 15% of the
cost of raising the child,” id., Controlled Expenses cmt., and “are assumed to be
equal to 15% of the Basic Child Support Obligation,”3 id., “Analysis of Parenting
Time Costs” cmt. (emphasis added). Thus, the Basic Child Support Obligation
already includes controlled expenses. Id. This is why the comments note that
the controlled expenses are “generally not a consideration unless there is equal
2
It is undisputed that the Guidelines allow a trial court to award child support to a non-custodial parent. See
R.B. v. K.S., 25 N.E.3d 232, 235 (Ind. Ct. App. 2015) (citing Guideline 3(F)).
3
The “Basic Child Support Obligation” is the amount of support calculated by applying the Guideline
Schedules for Weekly Support Payments to the parents’ combined weekly adjusted income. Guideline 3(D).
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parenting time[,]” and they “are not pertinent for litigation.” Id., Controlled
Expenses cmt.
[11] The trial court abused its discretion when it reduced Wife’s $50 child support
obligation to $0 on the grounds that Wife will be paying all controlled expenses,
as her payment of controlled expenses was already taken into consideration in
reaching the amount of the child support obligation.4
Attorney’s Fees
[12] Husband maintains that the trial court erred when it ordered him to pay Wife
$250 in attorney fees incurred in filing a motion to compel discovery. Husband
does not disagree that there was a discovery dispute which required Wife to file
a motion to compel. Nor does he dispute that the trial court correctly granted
the motion to compel. Rather, he contends that the trial court erred in ordering
him to pay the fees for such a motion because Husband had already paid $900
towards Wife’s attorney fees, and Husband has significantly less income than
Wife.
[13] The “purposes of sanctioning discovery violations ‘is not merely to penalize
those whose conduct may be deemed to warrant such a sanction, but to deter
those who might be tempted to such conduct in the absence of such a
4
Husband asserts for the first time in his reply brief that the trial court erred in “imput[ing] income to
Husband at minimum wage” when calculating the child support obligation. Reply Br. at 6. However, claims
raised for the first time in a reply brief are waived. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968,
977 (Ind. 2005) (citation omitted) (“The law is well settled that grounds for error may only be framed in an
appellant’s initial brief and if addressed for the first time in the reply brief, they are waived.”).
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deterrent.’” Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012) (quoting Nat’l
Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 (1976)). We
review a trial court’s sanction for a discovery violation for an abuse of
discretion. Id. And a trial court’s “discovery rulings are given a strong
presumption of correctness because they are usually fact-sensitive.” Gonzalez v.
Evans, 15 N.E.3d 628, 633 (Ind. Ct. App. 2014), trans. denied. There is also “a
presumption that attorney fees will be awarded to a party who successfully
moves to compel discovery.” Id. at 640.
[14] Here, it is undisputed that the trial court awarded Wife $250 in attorney fees
because she successfully moved to compel Husband to comply with her
discovery requests. Husband has failed to provide any evidence or persuasive
argument to rebut the presumption that such a discovery sanction was correct.
His arguments that he had already paid a portion of Wife’s attorney fees and
that he has less money than Wife are irrelevant to the purpose for which
discovery violation sanctions are issued. The trial court did not abuse its
discretion in issuing its discovery sanction.5
5
Once again, Husband raises an argument for the first time in his reply brief; he contends that the attorney
fee affidavit in support of the request for sanctions indicates that Wife’s attorney only spent .30 hours of time
on the motion to compel. Reply Br. at 6. That argument is waived. Monroe Guar. Ins. Co., 829 N.E.2d at
977. Waiver notwithstanding, Husband is incorrect. The attorney fee affidavit reflects that Wife’s attorney
spent 1.30 hours of time on the motion to compel. Ex. Vol. IV, Ex. 66.
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Conclusion
[15] The trial court did not abuse its discretion in denying Husband’s request for
spousal maintenance and requiring Husband to pay $250 of Wife’s attorney fees
as a sanction for a discovery violation. However, the trial court did err in
reducing Wife’s $50 child support obligation to $0 on the grounds that Wife will
be paying all controlled expenses.
[16] Affirmed in part, reversed in part, and remanded with instructions to enter a
new child support order.
Bradford, J., and Brown, J., concur.
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C.B. v. L.B. (mem. dec.)
Combined Opinion