Brundage v. Brundage
| Decision Date | 12 December 2016 |
| Docket Number | Court of Appeals Case No. 45A04-1603-DR-506 |
| Parties | Carolyn F. Brundage, Appellant/Cross-Appellee/Respondent, v. Brian R. Brundage, Appellee/Cross-Appellant/Petitioner. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Crown Point, Indiana
ATTORNEY FOR APPELLEE
Harold Abrahamson
Abrahamson, Reed & Bilse
Hammond, Indiana
Appeal from the Lake Circuit Court
The Honorable George C. Paras, Judge
[1] Appellant/Cross-Appellee/Respondent Carolyn Brundage ("Mother") and Appellee/Cross-Appellant/Petitioner Brian Brundage ("Father") married in 1998 and had two children, A.B., born in 2001, and B.B., born in 2008 (collectively, "the Children"). In 2013, Mother began an extramarital affair, of which she informed Father in early 2014. Mother also informed Father that she wanted to separate from him, and Father petitioned for dissolution of the parties' marriage. Mother soon noticed that the Children's attitude toward her had changed, with A.B. refusing to speak to or greet her at a hearing on a provisional order.
[2] Approximately one week after Father petitioned for dissolution, the trial court issued a provisional order, which, inter alia, ordered Father to pay $1000 per month to Mother in provisional maintenance. Over the next few months, the parties and Children participated in counseling. Both A.B. and B.B. indicated during counseling sessions that they hated Mother. In November of 2014, the provisional order was amended to reflect a hiatus in visitation involving A.B. and Mother. Also around this time, Father stopped making his monthly provisional maintenance payments.
[3] Following a final evidentiary hearing, the trial court issued its dissolution order. Inter alia, the trial court (1) awarded primary physical custody of the Children to Father, (2) ordered that Mother pay Father $119 per week in child support, (3) purported to divide the marital estate equally while acknowledging the difficultyof assigning values to many assets, and (4) ordered that Father pay $25,000 in attorney's fees directly to Mother's attorney. The trial court's order did not address Father's failure to pay provisional maintenance for fourteen months.
[4] As restated, Mother contends that the trial court abused its discretion in awarding primary physical custody of the Children to Father, determining child support, dividing the marital estate and valuing certain marital assets, and failing to award provisional arrears owed by Father to Mother. Father cross-appeals, contending that the trial court abused its discretion in ordering him to pay $25,000 in attorney's fees directly to Mother's attorney. We affirm in part, reverse in part, and remand with instructions.
[5] Mother and Father were married on September 5, 1998, and two children were born of the marriage: A.B., born in June of 2001, and B.B., born in May of 2008. In 2013, Mother began an affair with Brian Jones, the Children's football coach. On or about January 3 to January 5, 2014, when Mother informed Father of the affair, Father told the Children that "mom picked a new dad for you." Tr. p. 780.
[6] On January 21, 2014, Mother told Father that she wanted to physically separate from him. Father, who had been encouraging Mother to stay in the marriage, called the Children into the bedroom, telephoned the police, and told them that Mother was beating him. When police arrived, Father had a "gaping gash" onhis head that Mother had not inflicted. Tr. p. 790. Although police did not arrest Mother, they told her that she should leave the marital residence.
[7] On January 22, 2014, Mother returned to the martial residence to retrieve some personal items and noticed that all of her jewelry was gone. Also that day, Father filed his verified petition for dissolution and motion for provisional order and obtained an ex parte order for protection against Mother. Mother was out of the marital residence for approximately one week pursuant to the order of protection. When Mother was able to return to the marital residence, she noticed that the Children's attitude and treatment of her had changed significantly.
[8] Following a hearing on January 29, 2014, the trial court issued a provisional order providing that: (1) neither party conceal, sell, or otherwise dispose of joint property or molest or disturb the peace of the other; (2) neither party expose the Children to a non-relative person with which the party was having or sought to have an intimate relationship; (3) the parties shall have joint legal and physical custody of the Children with each staying with them 50% of the time at the marital residence; (4) Father pay Mother $1000.00 per month as maintenance; (5) Mother was to receive a separate bedroom at the marital residence; and (6) the parties and Children begin counseling.
[9] After one weekend when Father had possession of the marital residence for visitation, the parties' housekeeper reported for work to find that one shoe was missing from each of Mother's pairs of shoes and that both shoes from the mostexpensive pairs were missing. When Mother returned to the marital residence under the terms of the provisional order, the Children would not eat the food she prepared for them, telling her that her hands were "dirty." Tr. p. 814.
[10] On May 3, 2014, Dr. Jan Elliot, Ph.D., conducted a court-ordered counseling session with Mother, A.B., and B.B. Dr. Elliot met first with Mother and when A.B. was introduced, he refused to acknowledge Mother at first and then screamed, "I hate you; you're not a good mother." Tr. p. 418. The session was not productive and Dr. Elliot concluded that A.B. was being negatively influenced by Father. When Dr. Elliot attempted to have B.B. brought in to calm A.B., B.B. entered with his middle finger raised at Mother screaming "I hate you" repeatedly. Tr. p. 426. Dr. Elliot concluded that Father was negatively influencing the Children.
[11] In June of 2014, in response to reports that Mother and her relatives were abusing A.B., a petition alleging the Children to be children in need of services ("CHINS") was filed. During the CHINS proceeding, psychologist Dr. Warren Ugent recommended that there be a hiatus in A.B. and Mother's visitation. Father was awarded temporary custody of A.B., and, after a few supervised visitations with Mother, DCS determined that there should be no further visitation with Mother. On or about November 7, 2014, the provisional order was amended to reflect the status quo with respect to A.B. and Mother's visitation situation.
[12] Meanwhile, in February of 2014, Father had become involved with a woman named Emily Stewart ("Emily Stewart #1"). Father spent tens of thousands of dollars on Emily Stewart #1, stayed with her in an apartment at his business, and brought her into the Children's lives in June of 2014. When the relationship with Emily Stewart #1 ended, she left with a large amount of Father's money.
[13] While attempting to locate Emily Stewart #1, Father found another woman named Emily Stewart ("Emily Stewart #2") on Facebook and began correspondence. In February of 2015, Father flew to Australia to meet Emily Stewart #2, leaving the Children with their nanny. Father returned from Australia with Emily Stewart #2, and she moved into Father's home. On April 25, 2015, Father and Emily Stewart #2 were married in Las Vegas, a union that was soon annulled because Father and Mother were still legally married at the time. Meanwhile, as of October 2014, Father ceased paying his $1000 per month maintenance to Mother and accumulated a $14,000 arrearage as of the final hearing.
[14] A final hearing on the dissolution was held over five days beginning on December 18, 2015. On February 9, 2016, the trial court issued its dissolution decree ("the Decree"). The Decree provided, in part, as follows:
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