Kondamuri v. Kondamuri
| Decision Date | 17 August 2006 |
| Docket Number | No. 45A03-0510-CV-523.,45A03-0510-CV-523. |
| Citation | 852 N.E.2d 939 |
| Parties | In re the Marriage of Saveen KONDAMURI, Appellant-Petitioner, v. Jayasri KONDAMURI, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Debra Lynch-Dubovich, Levy & Dubovich, Highland, IN, Attorney for Appellant.
Kathryn D. Schmidt, Burke Costanza & Cuppy, LLP, Merrillville, IN, Attorney for Appellee.
Saveen Kondamuri ("Father") appeals the trial court's order dissolving his marriage to Jayasri Kondamuri ("Mother").
We affirm in part, reverse in part and remand with instructions.
1. Whether the trial court properly awarded custody of the parties' daughter, A.K., to Mother.
2. Whether the trial court abused its discretion in determining child support.
3. Whether the trial court abused its discretion when it found that Father dissipated marital assets.
4. Whether the trial court abused its discretion in awarding attorney fees to Mother.
Father was born and reared in the Chicago area. Mother was born and reared in India. Both Father and Mother attended and graduated from medical school in India. Father and Mother met shortly before their arranged marriage, which took place on November 8, 1993. Mother moved to the United States in "May or June" of 1994. (Father's App. 70). Father was in a residency program, earning approximately $35,000 per year. Father finished his residency in 1996 and began practice as an anesthesiologist. Despite several attempts, Mother could not pass the exams necessary to continue her medical education.
A.K. was born on December 12, 1998. At the time, Father and Mother were living in and around the Chicago area. Father was working approximately twelve hours per day at a surgical center, and Mother began volunteering at the University of Illinois in Chicago, doing research work. Mother hoped her volunteer work would lead to a residency.
In the summer of 1999, when A.K. was approximately nine-months old, Mother moved to Boston to do research work at Harvard as a volunteer. Mother moved to Boston because her sister had a residency there and could assist Mother in finding a position. Mother testified that Father encouraged her to move to Boston to pursue her medical career. Although Mother testified that she wanted to take A.K. to Boston with her, Father and A.K. remained in Illinois.
Mother finally obtained a surgical residency in Boston in June of 2000, which paid approximately $35,000. Mother repeated another year as a surgical resident in Boston and then signed a contract to do another year of residency in internal medicine, also in Boston. Mother remained in Boston until December of 2002. During her stay in Boston, Mother saw A.K. six or seven times.
In September of 2001, Father rented an apartment in Schererville, Indiana. In August of 2002, Father filed for dissolution in Indiana. Subsequently, Mother retained counsel in Illinois and filed for dissolution in Illinois. Mother filed a motion to dismiss the Indiana dissolution case, arguing the trial court lacked jurisdiction. The trial court granted the motion to dismiss. Father appealed the dismissal, and we affirmed the trial court. See Kondamuri v. Kondamuri, 799 N.E.2d 1153 (Ind.Ct.App. 2003). The Illinois proceeding was dismissed around December of 2003.
Father again filed a petition for dissolution of marriage on December 10, 2003, in Indiana. Mother consented to the jurisdiction of the Indiana court. On December 31, 2003, the trial court entered a provisional order, giving Father temporary custody of A.K., allotting Mother "reasonable visitation upon reasonable notice using as a minimum the Indiana Parenting Time Guidelines," awarding Mother temporary maintenance in the amount of $1,000 per week and attorney fees in the amount of $5,000, and appointing a guardian ad litem ("GAL") and a custody evaluator. (Father's App. 28)
The trial court held a final hearing on August 15 through August 19, 2005. Father requested special findings of fact and conclusions of law pursuant to Indiana Trial Rule 52. The parties stipulated to joint legal custody. On September 22, 2005, the trial court entered its decree of dissolution. The trial court awarded physical custody of A.K. to Mother. The trial court "impute[d] full time minimum wage to the Mother for calculation of child support." (Father's App. 16). Finding that Father "reduced his work hours and was voluntarily underemployed as he assumed some of the child care responsibilities which the paternal grandparents had been previously providing" in 2004, the trial court used Father's "2003 income in the amount of $338,124.00 for purposes of calculation of child support." (Father's App. 17).
The trial court further found that "Father dissipated marital assets as seen by the gambling losses he claimed on his tax returns." (Father's App. 18). Thus, the trial court ordered the marital assets be divided with sixty percent going to Mother. The trial court also ordered Father to "be responsible for $4,500.00 in attorney fees the Mother has incurred herein," and reduced to a judgment against Father the amount of $39,916.00 in attorney fees incurred by Mother in the previous dissolution actions. (Father's App. 20). Additional facts will follow as necessary.
When a party has requested special findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A), we may affirm the judgment on any legal theory supported by the findings. Wenzel v. Hopper & Galliher, P.C., 779 N.E.2d 30, 36 (Ind.Ct.App.2002), trans. denied. In reviewing the judgment, we first must determine whether the evidence supports the findings, and second, whether the findings support the judgment. Id. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. Id. The judgment will be reversed if it is clearly erroneous. Id. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom. Id. We will not reweigh the evidence or assess witness credibility. Id. Even though there is evidence to support it, a judgment is clearly erroneous if the reviewing court's examination of the record leaves it with the firm conviction that a mistake has been made. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Nienaber v. Nienaber, 787 N.E.2d 450, 454 (Ind.Ct.App.2003).
Father contends that "the trial court should have utilized the more-stringent custody-modification standard, instead of the less-stringent initial custody-determination standard." Father's Br. at 11. Father further contends that even if the trial court utilized the proper standard, "the trial court still erred in awarding custody to the Mother." Father's Br. at 19.
Father argues that the trial court should have used the custody modification standard instead of the initial custody determination standard. Father argues the trial court should have used the modification standard because "Mother did nothing but acquiesce to the Father having custody." Father's Br. at 16.
In an initial custody determination, both parents are presumed equally entitled to custody, but a petitioner seeking subsequent modification bears the burden of demonstrating that the existing custody should be altered. Apter v. Ross, 781 N.E.2d 744, 757-58 (Ind.Ct.App.2003), trans. denied. Accordingly, the petitioner must show "a change in circumstances so decisive in nature as to make a change in custody necessary for the welfare of the child." In re Paternity of Winkler, 725 N.E.2d 124, 127 (Ind.Ct.App.2000). "A stricter rationale is required to support a change in custody because `permanence and stability are considered best for the welfare and happiness of the child.'" Id. (quoting Lamb v. Wenning, 600 N.E.2d 96, 97 (Ind.1992)).
Father relies on Winkler and Hughes v. Rogusta, 830 N.E.2d 898 (Ind.Ct.App. 2005), to support his contention that the trial court should not have used the less strict custody-determination standard because Mother acquiesced to Father's custody of A.K., and therefore, Father provided A.K. with permanency and stability. We believe the facts of these cases are distinguishable from the one at hand.
In Winkler, the mother always had legal custody of the parties' child, and the child had lived with the mother ten out of the child's twelve years when the father filed a petition to establish paternity and custody. We found that although there was no legal initial custody determination, the custody modification standard was appropriate because the interest in the child's stability still applied as the father had long acquiesced to the mother's physical custody of the child. 725 N.E.2d at 128. In Hughes, this court found no acquiescence where there was no prior court determination concerning custody, and the father immediately filed to establish paternity and determine custody after the mother moved out of the family residence with the child. 830 N.E.2d at 901.
In this case, there was no initial custody determination. Furthermore, although Mother lived apart from Father and A.K. for approximately three years, we cannot say that she acquiesced to Father's custody. Rather, Mother's stay in Boston, while A.K. remained with Father in Illinois, was a mutually agreed upon arrangement whereby Mother could pursue her medical career, and then once that was established, return to Illinois. Although Mother's contact with A.K. was limited while Mother resided in Boston, she resumed extended contact with A.K. once she moved back to Illinois. Thus, we find the trial court did not err in applying the initial determination of custody standard.
Father asserts that even if the...
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