N.D. v. T.D.
| Decision Date | 17 August 2011 |
| Docket Number | No. 71A03-1011-DR-648,71A03-1011-DR-648 |
| Parties | N.D., Appellant, v. T.D., Appellee. |
| 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:
JAMES R. RECKER
ARIC J. RUTKOWSKI
Zappia, Zappia & Stipp
South Bend, Indiana
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Margot Reagan, Judge
N.D. ("Mother") appeals the trial court's dissolution of her marriage to T.D. ("Father"). For our review, Mother raises six issues, which we reorder and restate as: 1) whether the trial court abused its discretion in awarding Father's pension accrued through his employer solely to him; 2) whether the trial court abused its discretion in awarding Father primary physical custody of the parties' son, A.D.; 3) whether the trial court abused its discretion in denying Mother's request for modification of provisional child support; 4) whether the trial court erred in awarding Father a tax exemption for A.D.; 5) whether the trial court abused its discretion in awarding Mother a lower amount of attorney fees than she requested; and 6) whether the trial court displayed bias against Mother amounting to reversible error. Concluding the trial court did not abuse its discretion or commit reversible error as to the issues of custody, provisional child support, the tax exemption, attorney fees, and bias, we affirm the trial court on those issues. As to the remaining issue of the pension, the trial court's findings do not disclose a sufficient basis for us to affirm, and we accordingly remand for further consideration and findings on that issue.
Mother and Father married in May 2005. They had one child together, their son A.D., born in March 2007. Father has a college degree and has been steadily employed at AM General in South Bend. Mother did not complete college, worked a lower-paying, part-time job after having A.D., and as of 2009 did not work outside the marital home.
On February 5, 2009, Father filed for dissolution in St. Joseph Superior Court. Father also filed a verified petition for provisional relief, requesting temporary physical custody of A.D. Mother filed a verified counter-petition, stating she left St. Joseph County with A.D. to live with her mother in Indianapolis and was residing there to provide full-time care to A.D. Mother requested that physical custody of A.D. be awarded to her, along with "immediate temporary maintenance during the pendency of this proceeding" and provisional child support. Amended Appellant's Appendix at 12.
In March 2009, the trial court issued an order granting Father scheduled "parenting time" with A.D. but making no formal ruling on Father's or Mother's requests for physical custody. Id. at 14. As part of that order, the trial court required Father to provide all transportation of A.D. to and from Mother's residence in Indianapolis, and ordered the issues of custody, parenting time, and child support submitted to mediation. On April 23, 2009, the trial court adopted the parties' mediated agreement, which scheduled Father's parenting time and required Father to pay child support of $190 per week starting April 24, 2009. The agreement also required that Father "continue to make the payment due on the Hummer vehicle in Mother's possession" and that Father "pay to Mother by April 24, 2009 the sum of $3,265.00 representing one half the parties' 2008 tax refund." Id. at 15. In September 2009, the trial court appointed a guardian at litem ("GAL") and ordered the GAL to prepare a custody evaluation and report.
On January 27, 2010, Mother filed, in Marion Superior Court, a petition for an ex parte order for protection against Father. The Marion Superior Court granted the protective order, which expired on February 2, 2010.
On February 12, 2010, the trial court held a telephonic status conference requested by Father's counsel and agreed to by Mother's counsel. After Mother's counsel argued Father had violated the ex parte protective order, the following exchange occurred:
On February 19, 2010, Mother filed a verified motion for change of judge, arguing the trial judge displayed bias against Mother during the February 12 telephonic conference. Mother claimed the judge's comments amounted to "derogatory statements about [Mother]" impugning her motives for obtaining a protective order, and contended the judge improperly "joined with opposing counsel" in trivializing and collaterally attacking the lawful Marion Superior Court order. App. at 55-56.
Also on February 19, 2010, the trial court held a hearing on two rule to show cause motions filed by Father and considered Mother's motion for change of judge. At the hearing, the trial court verbally indicated the motion for change of judge would be granted. However, in a written order issued later that same day, the trial court sua sponte reconsidered that decision and ruled:
[T]here has not been a showing of bias. No "derogatory" statements have been made about [Mother]. The telephonic hearing referred to in the motion, to which [Mother] agreed, was recorded. A transcript of that hearing would show that the court's ruling was not biased but was unfavorable to [Mother] for the reasons articulated. Pursuant to Indiana T.R. 76(C)(6), the motion was untimely and no showing of bias was made.
In April 2010, the GAL filed her report and recommendation concerning custody. A.D. was described as "very active, highly verbal, curious and bright, an independent toddler," "energetic, and a little boisterous." Id. at 63. The GAL opined that "each parent offers to [A.D.] something this child needs," and while each criticizes the other's parenting, "neither parent exerts their particular influence over [A.D.] in a harmful way." Id. at 64. The GAL added...
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