Firkins v. Firkins
| Decision Date | 12 August 2014 |
| Docket Number | No. 55A01–1311–DR–488.,55A01–1311–DR–488. |
| Parties | Todd FIRKINS, Appellant, v. Sheryl FIRKINS, Appellee. |
| Court | Indiana Appellate Court |
John C. Drier, Plainfield, IN, Attorney for Appellant.
Todd Firkins (“Father”) appeals the Morgan Superior Court's order modifying child custody and parenting time and establishing Father's weekly child support obligation. Father raises several issues, which we consolidate and restate as:
We reverse the trial court's calculation of Father's child support obligation and remand with instructions to issue a corrected child support order, but affirm in all other respects.
Mother and Father's marriage was dissolved in May 2010. In their written settlement agreement, the parties agreed to share joint physical and legal custody of their two minor children. Neither party was ordered to pay child support, and they agreed to equally share the tax dependency exemptions for the children. The parties alternated physical custody of the children weekly.
However, in January 2011, Father moved from his residence, and Mother could not locate him. Father failed to contact Mother or the children for six months. On some date in June 2011, Father finally contacted Mother and established parenting time with the children. However, the parties did not revert to their weekly alternating shared physical custody arrangement. The parties eventually established a schedule where Father exercised parenting time with the children every other weekend and one evening per week.
Over Father's objection, Mother enrolled the children in a Catholic school at the start of the 2011–12 school year at her own expense. Mother did not believe that the public school system was meeting their son's special needs. Mother has noted substantial improvement in the son's academic progress since attending the Catholic school. The parties' daughter is an excellent student.
On April 10, 2013, Mother filed a petition to modify child support and custody. In response, Father filed a motion to show cause why Mother should not be held in contempt because she enrolled the children in Catholic school over his objection. The trial court held a hearing on the parties' pending motions on September 20, 2013.
Evidence presented at the hearing established that Mother resides with her boyfriend and her children, including Mother's three older children from prior relationships, and has not been employed since 2009. Mother is a high school and cosmetology school graduate. Mother receives social security survivor benefits on behalf of two of her three older children. Father resides with his girlfriend. He is employed as a machinist and earns $19 per hour. Father is able to obtain insurance for the children through his employer at a cost of $30 per week.
On October 10, 2013, the trial court issued an order modifying child custody and establishing Father's child support obligation. The court awarded Mother sole legal and sole physical custody of the children and awarded Father parenting time consistent with the Indiana Parenting Time Guidelines, except that 1) Father may not have overnight visitation with the children Sunday through Thursday when school is in session, 2) he is “prohibited from operating a vehicle with the children on board until he has reinstated his driver license and shown and maintains proof of financial responsibility to the BMV and to [Mother]” and 3) he “must not be under the influence of any intoxicating or mood-altering substances while the children are under his physical care during any parenting time.” Appellant's App. p. 10.
The trial court ordered Father to maintain medical insurance coverage for the children and to pay $152 weekly in child support. The trial court also awarded Mother the sole right to claim the children as dependents for tax purposes for the 2013 tax year, but ordered that Father may claim one child for tax purposes for 2014 and thereafter, if he is current in his child support payments.
Father now appeals. Additional facts will be provided as necessary.
We note that Mother has not filed an appellee's brief. When an appellee fails to submit a brief, we do not undertake the burden of developing the appellee's arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind.Ct.App.2006). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct.App .2002). However, we review de novo questions of law, regardless of the appellee's failure to submit a brief. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008).
The role of the trial judge is to serve as a neutral and passive arbiter. See Owens v. State, 750 N.E.2d 403, 409 (Ind.Ct.App.2001) ; see also Branham v. Varble, 952 N.E.2d 744, 747 (Ind.2011) (). A violation of due process occurs where a trial judge combines the roles of judge and advocate. In re Commitment of Roberts, 723 N .E.2d 474, 476 (Ind.Ct.App.2000). However, the trial judge may intervene in an effort to promote clarity or dispel obscurity, so long as it is accomplished in an impartial manner. A.N. v. K.G., 3 N.E.3d 989, 995 (Ind.Ct.App.2014). Importantly, a judge's discretion to intervene is greater in bench trials than in trials before juries. Ware v. State, 560 N.E.2d 536, 539 (Ind.Ct.App.1990), trans. denied.
Father argues that the trial court acted not as an impartial tribunal, but as an advocate for Mother, when the court sua sponte questioned Mother. The trial court asked questions about Mother's address, the public school district the children would attend if they did not attend Catholic school, Mother's employment status, Mother's current living arrangement, and her other children from prior relationships. The purpose of these inquiries was clarification of Mother's prior testimony, and the trial court acted within its discretion when it asked the questions.
The trial court also asked Mother whether Father ever explained his six-month disappearance from the children's lives from January 2011 to June 2011. Mother responded that she and the children were never given a reason for Father's absence. The court also wanted to know if Father had ever been treated for mental illness, and Mother responded in the negative. Mother was asked whether she knew where Father was employed and if she had any information about his current living arrangement. Finally, the court asked Mother additional questions about their son's learning disability, the services he receives from his school, his progress in school, and the student to teacher ratio of the children's Catholic school. Tr. pp. 33–38.
We agree these questions go beyond mere clarification, but the court's inquiries were aimed at providing the court with a complete picture of the parties' circumstances since the dissolution of their marriage. Trial judges are fact finders in dissolution, custody and support proceedings and are called upon in those proceedings to make life-changing decisions in the lives of children. It is therefore especially important in such instances that they have a complete picture of the facts and circumstances at issue. Moreover, Father failed to object to the trial court's questions. A party's failure to object at trial results in waiver, unless error is fundamental, i .e. “a blatant violation of basic principles rendering the trial unfair.” Davis v. State, 835 N.E.2d 1102, 1107 (Ind.Ct.App.2005), trans denied. Although these standards have been developed in Indiana's criminal law, we may apply the doctrine when considering a party's failure to object to alleged error in the civil context. See e.g. A.N., 3 N.E.3d at 994–95.
On the record before us, the trial court's questions, seeking clarification of and additional development of certain relevant and important facts, do not constitute fundamental error. Moreover, and most importantly, the parties' counsel were given the opportunity to re-examine Mother after the trial court ended its inquiry. Tr. p. 38. For all of these reasons, Father has not established that the trial court's questions rendered the bench trial unfair.
Father next argues that the trial court abused its discretion when it modified legal custody of the children because Mother agreed to joint legal custody and the evidence is insufficient to support the modification.1 Where, as here, the trial court enters findings and conclusions sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issues upon which the trial court has not found. Kietzman v. Kietzman, 992 N.E.2d 946, 948 (Ind.Ct.App.2013). We may affirm a general judgment on any theory supported by the evidence adduced at trial. Id.
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