Niccum v. Niccum
| Decision Date | 08 April 2015 |
| Docket Number | No. 85A02–1408–DR–551.,85A02–1408–DR–551. |
| Citation | 31 N.E.3d 1043 (Table) |
| Parties | In re the Marriage of Regina A. NICCUM, Appellant–Respondent, v. Matthew B. NICCUM, Appellee–Petitioner. |
| Court | Indiana Appellate Court |
Bryan L. Ciyou, Lori B. Schmeltzer, Ciyou & Dixon, P.C., Indianapolis, IN, Attorneys for Appellant.
R.P. Fisher, Fisher & Ireland, Wabash, IN, Attorney for Appellee.
BARNES
, Judge.
[1] Regina Niccum appeals the trial court's denial of her motion to continue, the modification of custody, the modification of child support, and the award of attorney fees to her ex-husband, Matthew Niccum. We affirm.
[2] Regina raises four issues, which we reorder and restate as:
[3] Regina and Matthew were married in 2006, and they had a child, H.N, in 2007. Their marriage was dissolved in 2011. At that time, the trial court awarded them joint legal custody of H.N. and awarded Matthew physical custody. The trial court awarded Regina parenting time, “at a minimum, pursuant to the Indiana Parenting Time Guidelines ....“ App. p. 26. The trial court ordered Regina to pay $125.00 per week in child support. In calculating Regina's child support obligation, the trial court deviated from the Indiana Child Support Guidelines in part because Regina had five older children, four of whom resided with her full time and one of whom resided with her part time, and her receipt of child support for those children had been irregular. The trial court also considered that Matthew had other family financial support and the likelihood that Regina would have more parenting time than provided for in the Indiana Parenting Time Guidelines.
[4] The parties had difficulty communicating, and the custody exchanges were difficult at times. These issues were exacerbated by Regina's work schedule, which often required her to work weekends.
[5] On October 18, 2013, Regina petitioned to modify physical custody and terminate her child support obligation. Matthew then requested that Stephanie Gottschalk, who had been appointed as the GAL in the original dissolution proceeding, be reappointed to the case. Regina responded, requesting that someone else be appointed to serve as GAL. In November 2013, the trial court issued an order reappointing Gottschalk as GAL.
[6] On April 25, 2014, the matter was set for a one-day hearing on July 10, 2014. On May 29, 2014, Matthew petitioned for sole legal and physical custody. On June 27, 2014, Matthew filed an objection to any continuances, explaining it had come to his attention that Regina had taken H.N. to one or more counselors in Marion, to a psychologist in Fort Wayne, and to a psychiatric nurse practitioner, Rachel Miller, who ultimately proscribed Zoloft
for H.N. Matthew anticipated that Regina was going to move to continue the July hearing because Miller was not available to testify. On July 2, 2014, Regina filed a motion to continue the July 10, 2014 hearing. The unverified motion provided that counsel intended to call Miller as witness, that Miller was not available to testify that day, that documentation created by Miller would not be available in time for the hearing, and that Miller was a “necessary witness for [Regina's] case.” Id. at 82. On July 7, 2014, the trial court denied Regina's request for a continuance.
[7] On July 10, 2014, the hearing was conducted. Gottschalk testified, and her GAL report was discussed by various witnesses and admitted into evidence without objection. At the conclusion of the hearing, Regina's counsel challenged whether Gottschalk was qualified to be a GAL. On July 17, 2014, the trial court issued an order denying Regina's challenge to Gottschalk's qualifications as untimely and unfounded, awarding legal and physical custody to Matthew, modifying Regina's child support obligation from $125.00 to $138.00 per week, and awarding Matthew $9,000.00 in attorney fees. Regina now appeals.
[8] The trial court's findings were issued sua sponte, and they control only as to the issues they cover. Townsend v. Townsend, 20 N.E.3d 877, 879 (Ind.Ct.App.2014)
. We “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). We may not reweigh the evidence or reassess witness credibility, and we view the evidence most favorably to the judgment. Best v. Best, 941 N.E.2d 499, 502 (Ind.2011). A judgment is clearly erroneous if the evidence does not support the findings, the findings do not support the judgment, or the trial court applies the wrong legal standard to properly found facts. Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.2005). “Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time.” Best, 941 N.E.2d at 502.
[9] Regarding motions to continue a trial, Indiana Trial Rule 53.5
provides in part:
Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence.... A motion to postpone the trial on account of the absence of evidence can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it; and where the evidence may be; and if it is for an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring the testimony within a reasonable time, and that his absence has not been procured by the act or connivance of the party, nor by others at his request, nor with his knowledge and consent, and what facts he believes to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured.
“A trial court's decision to grant or deny a motion to continue a trial date is reviewed for an abuse of discretion, and there is a strong presumption the trial court properly exercised its discretion .” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind.2009)
.
[10] Regina contends that the inability to call Miller to testify about her diagnosis and treatment of H.N. precluded her from presenting her case in its entirety. However, Regina's argument regarding the relevance of Miller's testimony is based in large part on evidence presented at the hearing, not just the contents of her motion to continue, which fell far short of establishing good cause for a continuance under Trial Rule 53.5
. The motion to continue provided only that counsel intended to call Miller “from the Wabash County Bowen's center as witness” at the hearing, that Miller was not available to testify that day, that documentation created by Miller would not be available in time for the hearing, and that Miller was a “necessary witness for [Regina's] case.” App. 82. The motion was not supported by affidavit and did not explain why Miller was necessary to Regina's case. This bare assertion of necessity was not sufficient to establish good cause for the continuance.
[11] Regina claims that the trial court could have ascertained Miller's testimony from the GAL report, which was filed with the trial court before her motion to continue and contained a summary of Miller's meeting with Regina and H.N. Regina's motion to continue, however, did not reference or otherwise incorporate the GAL report, and she cites no authority for the proposition that the trial court must sua sponte examine all filings prior to ruling on a motion to continue. Moreover, the GAL report included a summary of Miller's meeting with H.N. and Regina, the basis of her diagnosis, and possible side effects of the medication she prescribed, and Regina does not explain what additional testimony Miller would have offered. As such, Regina has not established that she was prejudiced by the denial of her motion to continue. See F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind.Ct.App.2012)
().2 Regina has not established that the trial court abused its discretion in denying her motion to continue.
[12] Regina asserts that Gottschalk was not statutorily qualified to serve as a GAL. Regina, however, did not timely challenge Gottschalk's qualifications. In her objection to Matthew's request to reappoint Gottschalk, Regina stated about Gottschalk, “While [Regina] does not question her qualification, [Regina] would point out that there are many equally qualified Guardian Ad Litems that would be able to serve in this matter.” App. p. 38. Regina called Gottschalk to testify at the hearing, and she did not object to Gottschalk's testimony or the GAL report based on her qualifications. It was not until closing remarks that Regina's counsel asserted Gottschalk lacked training that is statutorily required in some circumstances. See Ind.Code § 31–9–2–50
(). At that point, Regina's attorney stated, “I understand her—her report's in and that her testimony is in, but I think the court needs to keep that in mind ....“ Tr. p. 174.
[13] Our supreme court has observed:
In general “waiver” connotes an “intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)
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