Cross v. Cross

• Decision Date: 07 August 2008
• Docket Number: No. 49A05-0802-CV-94.,49A05-0802-CV-94.
• Court: Indiana Appellate Court
• Parties: Craig CROSS, Appellant-Respondent, v. Victoria CROSS, Appellee-Petitioner.

891 N.E.2d 635

Craig CROSS, Appellant-Respondent, v. Victoria CROSS, Appellee-Petitioner.

No. 49A05-0802-CV-94.

Court of Appeals of Indiana.

August 7, 2008.

Janet L. Manship, Pritizke & Davis, Greenfield, IN, Attorney for Appellant.

Brian M. Kubicki, Brian R. Gates, Jones Obenchain, South Bend, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Craig Cross appeals the trial court's grant of Victoria Cross's petition for modification of child support and the denial of his petition to claim their children for tax exemption purposes. Craig raises five issues, which we consolidate and restate as:

I. Whether the trial court abused its discretion by granting Victoria's motion to withdraw admissions;

II. Whether the trial court abused its discretion by granting Victoria's petition for modification of child support; and

III. Whether the trial court erred when it denied Craig's petition to claim their children for tax exemption purposes.

We affirm in part, reverse in part, and remand.

The relevant facts follow. Craig and Victoria are the parents of J.C., born November 1989, and V.E.C., born June 1981. Craig and Victoria's marriage was dissolved in August 2001. Pursuant to the decree of dissolution, Victoria was awarded custody of their two children, and Craig was ordered to pay child support in the amount of $100 a week.

On August 12, 2005, Victoria filed a petition for modification of child support. On September 8, 2005, Craig served discovery requests on Victoria, including a request for admissions seeking to establish that V.E.C. was an emancipated child under Ind.Code § 36-16-6-6. Victoria failed to respond timely to the request for admissions.

At a hearing on October 12, 2005, the trial court informed Victoria, who was given another copy of Craig's request for admissions, that she must respond to that request within thirty days. In January 2006, Victoria was appointed pro bono counsel, and, on January 26, 2006, she submitted a response to the request for admissions denying that V.E.C. should be emancipated. On February 22, 2006, Craig filed a petition to claim their children for tax exemption purposes.

At a hearing on April 18, 2006, Victoria began to present evidence that V.E.C. was autistic and "unemployable." April 18, 2006 Transcript at 4. Craig objected that Victoria had failed to respond timely to his request for admissions concerning V.E.C.'s emancipation, which, he argued, should be deemed admitted by operation of law. The trial court took the matter under advisement and directed the parties to submit proposed orders and memoranda on the issue. On May 1, 2006, before the trial court had ruled on the issue, Victoria filed a motion to withdraw the admissions deemed admitted by operation of law under Ind. Trial Rule 36(B). On June 12, 2006, the trial court granted Victoria's motion to withdraw admissions.

On January 22, 2008, the trial court held another hearing on the petitions of both parties. Craig renewed his objection to the presentation of "any evidence concerning disability of [V.E.C.] that would have been deemed admitted by way of the request for admissions." January 22, 2008 Transcript at 4. The trial court did not specifically rule on the objection but allowed Victoria to present evidence that V.E.C. is autistic and cannot care for herself. Because of this disability, V.E.C. receives $111 a week in Supplemental Security Income ("SSI"). Victoria further presented evidence that, in caring for V.E.C., she can only work part-time "at a job that affords her the opportunity of bringing [V.E.C.] with her." Id. at 14. Accordingly, Victoria works as a healthcare provider for an Alzheimer's patient. Victoria testified that she pays a neighbor thirty dollars a week to watch V.E.C. for a few hours and "relieve" Victoria of her "constant supervision" of V.E.C. Id. at 23-24. Victoria also noted that, in 2003, she did not file a tax return because she did not have sufficient income, but that she filed tax returns in subsequent years. Craig argued that Victoria should be credited with V.E.C.'s SSI payments and that his child support payments should be reduced accordingly.

After the hearing, the trial court ordered that Victoria continue to claim both children for tax exemption purposes but ordered her to inform Craig by February 1st after each tax year for which she does not file a tax return. The trial court held that Craig may amend his tax return for 2003 and claim their children "so long as no penalty will be assessed to [Victoria]." Appellant's Appendix at 9. The trial court also held that Craig is "not entitled to any credit from his child support order" in light of V.E.C.'s SSI payments and, after crediting Victoria for the weekly expenditure of $30 for "work related daycare," ordered Craig to pay $139 a week in child support. Id. at 9-10. Thus, the trial court granted Victoria's petition for modification of child support and, except for his 2003 tax return, denied Craig's petition to claim their children for tax exemption purposes.

I.

The first issue is whether the trial court abused its discretion by granting Victoria's motion to withdraw admissions. Under Ind. Trial Rule 36, the failure to respond in a timely manner to a request for admissions causes those matters to be admitted and conclusively established by operation of law.¹ Ind. Tr. R. 36; City of Muncie v. Peters, 709 N.E.2d 50, 54-55 (Ind.Ct.App.1999), reh'g denied, trans. denied. Requests for admissions under Ind. Trial Rule 36 may, in addition to seeking evidentiary matters, ask for admissions as to legal issues, contentions, and conclusions, if related to the facts of the case. Id. (citing General Motors Corp. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 888 (Ind.1991)). Matters admitted under the rule are deemed "conclusively established," eliminating the need to prove them at trial. Id.

However, the party deemed to have made those admissions may move the trial court for withdrawal of those admissions pursuant to Ind. Trial Rule 36(B).² Id. The trial court cannot grant a motion to withdraw admissions unless it determines both that: (1) withdrawal or amendment will subserve the presentation of the merits; and (2) prejudice in maintaining the action or defense will not result to the party obtaining the admission. Id. The party seeking withdrawal has the burden of demonstrating that the presentation of the merits will be subserved by withdrawal, and the party who has obtained the admissions has the burden of demonstrating that it will be prejudiced if the trial court permits withdrawal. Id. (citing Ind. Trial Rule 36(B)). Further, even if both of these conditions are satisfied, the rule does not compel the trial court to grant a request to withdraw admissions; rather, the court may, in its discretion, permit withdrawal. Id. at 55 (citing General Motors, 573 N.E.2d at 889). We will reverse the grant or denial of a motion to withdraw admissions only for an abuse of discretion. Id.

In discussing the limits of the discretion in ruling on a motion to withdraw admissions, the Indiana Supreme Court stated as follows:

Although an admission should ordinarily be binding on the party who made it, there must be room in rare cases for a different result, as when an admission no longer is true because of changed circumstances or through honest error a party has made an improvident admission. However, . . . [u]nless the party securing an admission can depend on its binding effect, he cannot safely avoid the expense of preparing to prove the very matters on which he has secured the admission, and the purpose of the rule is defeated.

General Motors, 573 N.E.2d at 889 (citations omitted).

Craig argues that Victoria "submitted no evidence subsequent to the [April 18, 2006] hearing[ ] that the merits of the case would be subserved if withdraw [sic] was . . . granted." Appellant's Brief at 13. However, in General Motors, the Indiana Supreme Court held that the trial court did not abuse its discretion by denying the defendant's motion to withdraw admissions where:

Neither [the defendant's] motion to withdraw admissions nor its supporting memorandum presented the trial court with any claim or indication that its failure to timely respond was inadvertent, that it had nevertheless continued to actively contest the issues involved in the challenged admissions, or that [the plaintiff] was aware that [the defendant] intended to contest the admitted issues at trial.

General Motors, 573 N.E.2d at 889.

We note that Victoria's belated response to Craig's request for admissions denied much of the factual assertions in support of Craig's argument that V.E.C. should be emancipated. At the April 18, 2006 hearing, Victoria began to present evidence that V.E.C. is autistic and "unemployable." April 18, 2006 Transcript at 4. Finally, we note that, on May 12, 2006, Victoria was declared V.E.C.'s guardian because of V.E.C.'s disability. We conclude that Victoria actively continued to contest the issue of V.E.C.'s emancipation and that Craig was aware that Victoria intended to contest the admitted issues. Thus, Victoria made a sufficient showing that withdrawal of the admissions would subserve the presentation of the merits.

Victoria, on the other hand, argues that Craig has failed to show that he was prejudiced by the trial court's grant of her motion to withdraw admissions. In the context of Ind. Trial Rule 36(B), "prejudice" does not mean that the party who has obtained the admission will lose the benefit of the admissions; rather, it means that the party has suffered a detriment in the preparation of its case. City of Muncie, 709 N.E.2d at 55. For example, prejudice under the rule may be shown where the party who obtained the admission is unable to produce key witnesses or present important evidence. Id. (citing Corby v. Swank, 670 N.E.2d 1322, 1326 (Ind.Ct. App.1996); Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1313-1314 (8th Cir. 1983)).

Here, we...