Apter v. Ross

• Court: Indiana Appellate Court
• Writing for the Court: VAIDIK.
• Citation: Apter v. Ross, 781 N.E.2d 744 (Ind. App. 2003)
• Decision Date: 16 January 2003
• Docket Number: No. 49A05-0203-CV-136.,49A05-0203-CV-136.
• Parties: Gary M. APTER, Appellant-Respondent, v. Victoria (Apter) ROSS, Appellee-Petitioner.

781 N.E.2d 744

Gary M. APTER, Appellant-Respondent, v. Victoria (Apter) ROSS, Appellee-Petitioner.

No. 49A05-0203-CV-136.

Court of Appeals of Indiana.

January 16, 2003.

David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Gale M. Phelps, Phelps & Fara, Indianapolis, IN, Attorneys for Appellant.

Maxine T. Bennett, Indianapolis, IN, Attorney for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Gary Apter challenges the trial court's judgment modifying the joint custody order and child support order between him and his former wife, Victoria Ross. Gary argues that the trial court erred in refusing to admit into evidence a recorded phone conversation between Victoria and their daughter because it found that the recording violated federal wiretap laws. Gary also argues that the trial court abused its discretion in disregarding the testimony of private investigators that Gary hired. Based on the recording, the private investigators' testimony, and other evidence, Gary argues that the trial court abused its discretion in modifying the joint custody order and in awarding sole legal custody of the children to Victoria rather than him. Next, Gary argues that the trial court erred in ordering him to purchase a certain type of medical coverage for the children and in modifying child support because it improperly imputed income to him and because it used the wrong child support formula. Finally, Gary argues that the amount of attorney fees awarded by the trial court was incorrect.

Because the recording of the phone conversation was made on Gary's home phone and because as a parent with joint legal custody Gary had the power to consent on his minor daughter's behalf to the recording of her phone conversation, we find that the trial court erred in refusing to admit the contents of the recording. Nevertheless, because the evidence before the court reveals that the joint custody arrangement was placing the children's mental and physical welfare at risk and the children adamantly expressed their desire to remain in the custody of their mother, we find that the trial court did not abuse its discretion in modifying the joint custody order and in awarding Victoria sole legal custody. However, because the trial court improperly imputed income to Gary when calculating Gary's child support payment, we reverse the child support modification and remand with instructions for a recalculation. In addition, we find that the trial court awarded attorney fees that were not fully supported by the evidence in the record, and we reverse the award and remand with instructions for the trial court to determine what attorney fees are appropriate based on fees actually incurred by Victoria.

Facts and Procedural History

Gary and Victoria are the parents of two children, N.A. and A.A. N.A. was born on April 29, 1986, and A.A. was born on May 30, 1988. Gary and Victoria were divorced pursuant to a Dissolution Decree entered on January 24, 1989. Victoria was originally awarded sole legal custody of N.A. and A.A. However, in 1994, Victoria began preparations to move from Marion County, Indiana, to St. Louis, Missouri, with N.A., A.A., and her second husband, Eddie Hurwitz. As a result, Gary filed a Petition to Restrain the Removal of the Children from Jurisdiction and for Custody. On October 12, 1994, the trial court modified its custody order awarding joint legal custody while allowing Victoria to move to Missouri and retain primary physical custody of the children.

After the move to Missouri, Victoria and Hurwitz had one child. In 1999, Victoria and Hurwitz divorced. Following her divorce from Hurwitz, Victoria began working as a secretary and sales person for an investment company. Gary also remarried following his divorce from Victoria. Gary and his wife, Peggy, have one child together, and two of Peggy's children from a previous relationship live with them in their home. Gary owns a real estate investment business that buys distressed properties, rehabilitates them, and then resells or rents them.

In addition to the legal proceedings surrounding Victoria's move to Missouri, Gary and Victoria engaged in a series of legal disputes after the dissolution of their marriage involving custody, visitation, and child support. Originally, no child support order was entered because Gary was incarcerated at the time of the divorce decree; however, on November 23, 1992, an agreed entry of modification was filed in which Gary was ordered to pay $900 per month in child support. On March 30, 1995, the trial court approved an agreed entry of modification that increased the child support payment to $1450 per month. In its Findings of Fact, Conclusions of Law and Orders from February 2, 1998 (1998 Order), the trial court ordered that the child support order should again be modified to the sum of $439 per week, which could be payable monthly in the sum of $1902. In addition, both parents filed numerous other motions seeking custody and visitation modifications.

This appeal stems from Gary's Petition for Modification of Custody filed on May 30, 2000, Victoria's Motion for Modification of Child Support and Related Benefits filed on August 14, 2000, her Motion for Modification of Visitation filed on February 9, 2001, and her Motion for Rule to Show Cause filed on February 28, 2001. The trial court held hearings on these motions on February 12, 2001, July 10-11, 2001, and August 7, 2001. During the hearings, Gary submitted a transcript of a taped phone conversation between Victoria and N.A., which the trial court determined was inadmissible. Appellant's App. p. 333-34. Gary also offered the testimony of private investigators who conducted surveillance on Victoria; however, the trial court found this testimony not to be reliable. Appellant's App. p. 330. On October 11, 2001, the trial court issued its Findings of Fact, Conclusion of Law and Order (2001 Order). In the 2001 Order, the trial court terminated joint custody, awarded sole legal and physical custody to Victoria, reorganized the visitation schedule, ordered that the child support order should be modified to the sum of $571 per week, and ordered Gary to replace his medical insurance policy for N.A. and A.A. In addition, the trial court ordered Gary to pay $6,664.84 representing the arrearage in retroactive child support to Victoria, $25,057.25 in attorney fees to Maxine Bennett, and $1510 in attorney fees to Leonard Frankel. Gary now appeals this judgment. Additional facts will be provided as necessary.

Discussion and Decision

Gary raises a number of issues on appeal challenging the trial court's 2001 Order. Gary argues that the trial court erred in finding in its 2001 Order that the contents of a recorded phone conversation between Victoria and N.A. were inadmissible and that Gary's hired private investigators were unreliable. Next, Gary argues that the trial court erred in concluding that child custody should be modified so that sole legal custody of the children was awarded to Victoria. Gary also argues that the trial court erred in modifying child support because it ordered him to purchase medical insurance for the children with a deductible that was too low and because it improperly imputed income to him and used inconsistent formulas in calculating the amount of weekly child support Victoria should receive. Finally, Gary argues that the trial court abused its discretion in awarding attorney fees to Victoria because the amount awarded to her included duplicate expenses and expenses for work that was never performed.¹

In this case, neither party requested the trial court to enter specific findings of fact and conclusions thereon. Instead, the trial court asked the parties to submit proposed findings and then entered findings of fact and conclusions on its own motion. Tr. p. 480-81. When the trial court enters such findings sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Brinkmann v. Brinkmann, 772 N.E.2d 441, 444 (Ind.Ct.App.2002). The specific findings will not be set aside unless they are clearly erroneous, and we will affirm the general judgment on any legal theory supported by the evidence. Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind.Ct.App.1997), trans. denied. A finding is clearly erroneous when there are no facts or inferences drawn therefrom that support it. Id. at 76-77. In reviewing the trial court's findings, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. at 77. Rather, we consider only the evidence and reasonable inferences drawn therefrom that support the finding. Id.

I. Tape Recording

Gary argues that the trial court erred when it failed to admit a recording that Gary made on his home phone's answering machine of a phone conversation between N.A. and Victoria. The phone conversation took place during N.A.'s summer visitation at Gary's home and occurred during the pendency of this custody suit. A transcript of the recording reads in pertinent part:

Victoria: Yeah, I just don't really have the money. I got to come up with money for this guardian ad litem to protect you guys and I don't know how much this is going to cost.

N.A.: What's that?

Victoria: Guardian ad litem. It's like your own legal representation.

N.A.: You don't have to do that Mom.

Victoria: What?

N.A. You don't have to do that.

Victoria: Yeah, I do.

N.A.: No you don't. We pretty much already won.

Victoria: Well, don't don't don't don't don't. I know it seems....

N.A.: (laugh)

Victoria: But don't think that you have. I have already had a talk with [A.A.] about that. In other words, don't let your guard down because you think that. So you still have to sit there with the fear that it can happen which means you have to be very verbal and open about what you want and what you don't want and what goes on in Indianapolis and what you would do if it did

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