Crowley v. Crowley
| Citation | 708 N.E.2d 42 |
| Decision Date | 30 March 1999 |
| Docket Number | No. 34A04-9712-CV-514,34A04-9712-CV-514 |
| Parties | Mark D. CROWLEY, Appellant-Petitioner, v. Laura R. CROWLEY, Appellee-Respondent. |
| Court | Court of Appeals of Indiana |
Appellant, Mark D. Crowley (Mark) appeals the trial court's provisional child support and maintenance orders, as well as the division of marital property and order to pay attorney fees, retroactive child support and the maintenance arrearage within its decree dissolving his marriage to Appellee, Laura R. Crowley (Laura).
We affirm in part and reverse in part.
The appellant presents several issues, which we condense and rephrase as follows:
(1) Whether the trial court abused its discretion in entering a provisional child support and maintenance order while Mark was serving overseas in the United States armed forces;
(2) Whether the trial court abused its discretion in ordering an unequal division of the parties' marital property; and
(3) Whether the trial court erred in awarding Laura attorney fees and retroactive child support and by ordering Mark to pay directly to Laura an arrearage of unpaid mortgage payments.
An extensive recitation of the case history and events during pendency of the dissolution is deemed appropriate in light of the various orders at issue.
The parties were married on October 23, 1983. Mark and Laura had two children: A.C., born February 7, 1989, and C.C., born April 21, 1992. The couple separated on February 11, 1996. On March 26, 1996, Mark filed a petition for dissolution of marriage. On that same day, the trial court entered a preliminary restraining order which prevented Mark and Laura from "[t]ransferring, encumbering, concealing, selling or otherwise disposing of any joint property of the parties or assets of the marriage ... without the written consent of the parties or permission of the Court." Record at 19. The court also ordered Laura to refrain from harassing Mark. After the dissolution petition had been filed but before having been served with the dissolution petition and related pleadings, Laura drew cash advances totaling $17,700 on various credit cards owned by the parties and withdrew approximately $8,750 from their joint bank accounts. In addition, Laura allegedly cashed checks payable to Mark in excess of $5,000. She also borrowed approximately $15,000 from her parents.
On April 13, Mark, a practicing physician, who was a Major in the Army Reserve, was ordered to report for active duty on April 29 at Fort Benning in Georgia, for a period not to exceed 140 days. Mark was ultimately stationed overseas in Germany and Bosnia. Citing his call to active military duty, on April 29, Mark filed a motion to pay over or impound all funds withdrawn from the parties' bank accounts and received as cash advances on credit cards. The trial court set a hearing date of May 8 to argue the motion and to consider provisional orders. On May 8, Mark filed a motion to continue, and the trial court agreed to lift the scheduled hearing and reassign the matter to a future date to be established upon request of the parties. Laura filed such a request on June 19, and the trial court assigned the matter for a hearing on July 2. Mark objected to the hearing request and filed another motion for continuance on June 26. In part, Mark's motion stated that he, "has been called to actively serve in the reserves, is now stationed in Germany and ... is entitled to protection under the Soldier's and Sailor's Relief Act since he is on assignment for the U.S. Department of Defense." Record at 35. The motion was granted on June 28. Subsequently, on July 9, the trial court set a hearing date for July 16, in order to determine whether the dissolution action should be stayed pending Mark's active military service. On July 10, Mark filed a motion to show cause, alleging that Laura was continually harassing him in violation of the court's restraining order. The charge was assigned for hearing on July 16, along with the other issues. On July 11, the trial court granted Mark's third request for a continuance and reset the hearing for July 22. At the July 22 hearing, the trial court scheduled an October 4 date to consider provisional orders.
Laura filed a petition for contempt against Mark on September 19, alleging that Mark had volunteered for active military duty and had requested reassignment so that he could be deployed. She further asserted that Mark had violated the trial court's restraining order by failing to pay his bills for automobile, life and health insurance, and for failing to make payments on various family debts. The contempt petition was also set for hearing on October 4. Two days before the hearing, Mark again filed a motion for a continuance. The motion, supported by affidavits from Mark and his commanding officer overseas, stated that Mark was reassigned to Belgium for an additional 130 days active duty. Mark's personal affidavit listed his salary, together with entitlements, as $2,208.35 semi-monthly.
A hearing was held on October 4, and the trial court entered its provisional orders the following week. In part, the trial court's order dated October 11 stated:
"2. The Court finds that [Mark's] military service and inability to be present does not unduly prejudice the interests of [Mark] as to the determination of the issues of provisional child custody, possession of the marital residence and its contents, and prospective provisional maintenance and support.
* * *
5. The Court further finds that during the provisional period and until further order of the Court, [Mark] shall pay as and in lieu of temporary maintenance, the mortgage payments due [on the parties' marital residence in Kokomo].
6. The Court further finds that during the provisional period and until further order of the Court, [Mark] shall pay child support in the sum of $237.00 per week, beginning October 4, 1996, the amount of said payments having been determined by an application of the Indiana Child Support Guidelines to the following findings:
a. [Mark's] gross weekly average income is $1104.17;
b. [Laura's] imputed gross weekly income is $190.00.
This determination of support is based on [Mark's] affidavit as to his current gross pay, which includes entitlements as well as base pay received.
7. The Court specifically reserves all other issues, including but not limited to the issue of retroactive support, pending further proceedings before the Court." Record at 111-13.
Mark returned to Kokomo from active military duty in mid-December of 1996. On March 10, 1997, Laura filed an affidavit for contempt, contending that Mark had violated the court's provisional orders by failing to make both mortgage and child support payments. On March 14, Laura filed a petition to modify child support. The trial court set the matter for hearing on April 1 but, upon its own motion, reset the hearing for April 3. Mark appeared pro se at the hearing on April 3 and requested a continuance in order to hire counsel. The request was granted and the matter was rescheduled for April 11.
The April 11 hearing addressed both Laura's affidavit for contempt and her petition to modify child support. Mark's request for a continuance of the hearing was denied. In addition, the trial court kept under advisement the issue of retroactive support. Furthermore, the trial court held Mark in indirect civil contempt of its provisional order to pay child support. Finding Mark $3,555 in arrears as to child support, the trial court ordered the suspension of his driver's license as well as his license to practice medicine. However, the trial court decided to withhold its sanctions until April 25, upon the condition that Mark purge his contempt by paying the amount of arrearage in full in addition to the support payments due on the ensuing two Fridays. Moreover, in order to avoid sanctions, Mark was ordered to make arrangements to stop foreclosure proceedings upon the marital home and to file proof of such arrangements with the court. As further sanction, the trial court ordered Mark to the county jail to serve a thirty day sentence, unless the arrearage of mortgage and child support was cured. The sentence was stayed for fourteen days. Mark was also ordered to pay Laura's attorney fee. Laura was directed to fill out the required tax forms in order to file an amended joint return.
In a written order entered April 15, 1997, the trial court granted Laura's petition to modify child support. In so doing, the trial court concluded:
"4. Since the Court entered its Provisional Order, there has been a substantial change in financial circumstances of the parties, in that [Mark] is no longer in active military service and is engaged in the private practice of medicine. [Laura] remains unemployed, although she testified that she is a registered nurse, who was last employed at a[n] average annual gross wage of $25,000.00.
5. The Court finds that effective April 4, 1997, [Mark's] provisional support order is modified to the sum of $405.00, which amount is determined based on the following findings applied to the Indiana Child Support Guidelines:
a. [Mark's] weekly gross income is $2884.00;
b. [Laura] has an imputed weekly gross income of $480.00."
On April 25, Mark notified the trial court that he had paid the child support arrearage and had agreed to meet with an attorney representing the bank threatening to foreclose upon the marital residence. Asserting that he was no longer in contempt, he moved to stay the sanctions imposed against him by the trial court. According to Mark, "[t]he current delay in the resolution of the foreclosure [was] the fault of [Laura] and/or her counsel." Record at 161. He further claimed that, "[t]he sanctions of suspension of licenses may only be imposed for the non-payment of child support and not...
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