Rules of the Indiana Family Law Game: A Year in Review 2012 — pt. 1

Posted by William Horne on Jan 7, 2013 in Gallery Notes | 1 comment

In 2012, the Indiana Supreme Court and Court of Appeals issued more than thirty decisions on various facets of family law.  Part one of this two-part post looks at the decisions that were focused primarily on procedural rules and the interplay of Indiana family law with other law.

Standard of Review

Toward the end of the year, the Indiana Supreme Court admonished appellate courts not to second guess trial courts in family law cases being reviewed under a clear error standard of review.  D.C. v. J.A.C., 977 N.E.2d. 951 (Ind. 2012).  “Today, we reiterate that in family law matters, trial courts are afforded considerable deference.”  Id. at 953.  The court noted that ten witnesses had testified at the relocation hearing including the guardian ad litem, who testified that the relocation was not in the child’s best interest.  Id. at 957.  Under the clear error standard, the the evidence “must positively require” another conclusion to warrant reversal of the trial court.  Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)).  The Court said the trial court had made “sufficient and supportable findings to sustain its decisions to prevent relocation and modify custody.” Id.

(Finding the trial court’s rationale “perplexing,”, the Court of Appeals had reversed its modification transferring primary custody of a child to the father after the mother moved 300 miles to Tennessee for a much higher paying job. D.C. v. J.A.C., 966 N.E.2d 158, 163-64 (Ind. Ct. App. 2012) rev’d 977 N.E.2d. 951 (Ind. 2012).  (Ed.’s note: The trial court opined that for the father to exercise parenting time over a three-day weekend, the child would be in a car for twenty of the seventy-two hours.  The Court of Appeals simply noted that this would apply to either parent. While this attorney recalls some interminable drives to Tennessee, he does not recall a 300-mile journey roundtrip lasting quite so long.)

Rules of Trial and Evidence

The ability of a parent or spouse to obtain post-judgment relief also captured the courts’ attention during the year.

The Court of Appeals affirmed a trial court’s decision to modify a dissolution degree under Trial Rule 60(B)(8)’s catch-all provision when the father sought access to a daughter born after the dissolution degree.  In re the Marriage of K.Z., 961 N.E.2d 1023 (Ind. Ct. App. 2012).  While the mother claimed paternity had not been proven, the court noted that the parents had acknowledged the pregnancy, and Indiana law generally presumes legitimacy of children born of a marriage within 300 days after a marriage is terminated.  Id at 1025-26.


In In re the Paternity of S.C., 966 N.E.2d 143 (Ind. Ct. App. 2012) aff’d with clarification on reh’g,  970 N.E.2d 248 (Ind. Ct. App. 2012),  the Court of Appeals upheld a trial court’s decision to set aside a judgment of paternity as a fraud upon the court under Trial Rule 60(B)(3).

The case involved a woman who, two days after her child’s birth, executed a paternity affidavit with one man despite doubts as to whether he was the child’s father.  Id. at 144-45. Some months later but only days after receiving DNA test results establishing a second man as the child’s father, she filed a petition and subsequently obtained a judgment from the Hancock County Circuit Court establishing paternity in favor of the first man.  Id. at 145.  However, she failed to inform the Hancock court of a related proceeding initiated by the second man in Fayette County.  Id. at 146-147.

The Court of Appeals said the Hancock court was justified in setting aside the judgment as a fraud because of the mother’s failure to inform it of a related proceeding that would have influenced its decision.  Id. at 151.  “[T]he Hancock County court did not err in finding the existence of an unconscionable plan intended to influence its decision, which did in fact influence the decision.”  Id.


The Indiana Supreme Court warned attorneys, however,  not to look to Trial Rule 60(B) to revisit property divisions, whether by agreement or court order.  Ryan v. Ryan, 972 N.E.2d 359 (Ind. 2012).   It  observed that Rule 60(B) is merely a procedural mechanism.  Id. at 370. “{A] court’s exercise of power under Trial Rule 60(B) is subject to the limitations of the substantive law.” Id.

In the case before the court, a couple had executed a private agreement for the sale of their residence and lake house.  Id. at 360.  The agreement, which was subsequently incorporated into the divorce decree,  stated that one spouse could only bind the other if the sale of the marital residence netted at least $1.1 million and the sale of the lake house at least $300,000.  Id. at 361.  The husband asked the trial court to grant relief from the judgment under Trial Rule 60(B)(8) on the grounds that the parties had not anticipated the market collapse when they finalized their agreement in 2008.  Id.

The court observed that the statutory prohibitions of modifying property divisions did not preclude a court from deciding disputes about the interpretation of a settlement agreement or property division order.  Id. at 363.  However, the court found not ambiguity in the couple’s agreement.  Id. at 364.

The  court acknowledged several instances in which Trial Rule 60(B) had been used to revise a property division arising from mistakes about the value of the investment and retirement plans.  See id. at 369.  However, the court declined to extend these holdings to property divisions involving real estate.  Id.   Moreover, unlike these “risks and rewards” cases, the couple’s agreement set the minimum prices expressly.  Id. at 370.

In affirming the denial of Rule 60(B) relief, the court expressly advised attorneys and judges that such problems can generally be avoided by using percentages rather than specific dollar amounts when fashioning agreements or orders.  Id. at 371.


The courts also addressed a couple of other procedural and evidentiary rules.

In A.T. v. G.T., 960 N.E.2d 878 (Ind. Ct. App. 2012), the Court of Appeals confirmed a parent’s right to obtain an automatic change of judge in a modification proceeding under Trial Rule 76(B), despite not filing her request within three days after receiving notice of the hearing.. The father had argued, based on T.R. 76(C)(5) and McClure v. Cooper, 893 N.E.2d 337, 340 (Ind. Ct. App. 2008), that she had to file within three days of obtaining notice.  The court limited  McClure’s holding to small claims court cases and held that 76(C)(5)’s 3-day time limitation only took effect after the court held a hearing at which it set a trial date.  A.T., 960 N.E.2d at 882.


In A.G. v. P.G., 974 N.E.2d 598 (Ind. App. 2012), the Court of Appeals affirmed a trial court’s extension of a protective order after the mother testified about statements allegedly made by both of her children about the father’s desire to hurt the mother, her family and friends.

The court observed, in a footnote, that father contested the admissibility “of certain pieces of evidence.” Id. at 598 n.1.  The court stated that it was declining to address these issues because the hearing was a bench trial, and an appellate court is entitled to presume that the trial court disregarded the inadmissible evidence.  Id.  While the appellate court stated that father’s arguments were premised on conflicting evidence – and therefore declined to reweigh the evidence – it did not elaborate on what this conflicting evidence was.

Interplay with Other Laws

The courts’ attention was also captured by interstate issues and conflicts with federal law.

The Court of Appeals confirmed that an Indiana resident’s petition for modification of another state’s child support order, must, in the absence of consent by all parties, be filed in the non-movant’s current home state even when the non-movant formerly resided with the child in Indiana.   Jackson v. Holiness, 961 N.E.2d 48 (Ind. Ct. App. 2012).     The non-residency requirement, sometimes known as the “play-away rule,” is imposed by Indiana’s adoption of the Uniform Interstate Family Support Act (“UIFSA”).  See Ind. Code § 31-18-6-11(a)(1).

In Jackson, mother and father were married in Indiana and then moved to Nevada, whether they obtained a divorce a year later. Jackson, 961 N.E.2d at 49.  The father moved to Maryland while mother and her children returned to Indiana.  Thirteen years later, she asked an Indiana court to modify the order.  Id.  Pursuant to Indiana Code Section 31-18-2-1(3), the court had personal jurisdiction over the father because he had resided in Indiana with the child.  Id. at 53.

Mother argued that the federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738(B) preempted UIFSA’s residency requirement.  Id. at 50-51.  The federal act simply states that when the parties and child no longer reside in the issuing state, a parent seeking to modify a support order must proceed in the state which has jurisdiction over the non-movant.  The act does not impose a non-residency requirement.

The Jackson court noted, however, that the Indiana Supreme Court had previously ruled that the federal act did not preempt the state’s UIFSA law.  Id. at 51 (citing Basileh v. Alghusain, 912 N.E2d 814, 820 (Ind. 2009)). Moreover, commentary to the federal law suggested that, like UIFSA, it intended that such actions be filed in the non-movant’s state of residence to avoid ambush in a local tribunal.  Id. at 52.


Likewise, in Zivot v. London, 2012 Ind. App. LEXIS 644 (Ind. Ct. App. 2012), the Court of Appeals found that a trial court did not have jurisdiction over a child support based on the trial court’s registration of a Canadian “certificate of divorce” and a settlement agreement that had never been submitted to a court for approval.

The father had begun paying mother the child support required by the Indiana Child Support Guidelines when she moved to Indiana from Canada in 2001 – an amount substantially less than what he had previously been paying pursuant to the settlement agreement.  Id. at 2-3.   Although the trial court recognized that the settlement agreement had never been approved and ordered by a court, it ordered father to pay mother $27,522 as a contractual remedy and to pay her attorney fees of $3,500.  Id. at 7-8

The Court of Appeals found that the Certificate of Divorce filed by mother was not a judgment, decree, or order, but a clerical document that could not be used to register a foreign order registered   Id. at 16-17.   “Without a registered order from another state, the trial court lacked jurisdiction to enter an order enforcing child support obligations against Father based on the Certificate of Divorce or the Settlement Agreement, which the trial court [had] found to be incorporated into the Certificate of Divorce.”  Id. at 17-18.


In a case addressing a potential conflict with federal law, the Indiana Supreme Court decided that the payout rules mandated by the Federal Employees Group Life Insurance Act (“FEGLIA”) did not preempt a state court from imposing a constructive trust on a life insurance proceeds in favor of the insured’s first wife. Hardy v. Hardy, 963 N.E.2d 470 (Ind. 2012).

Before dying, the insured had named his second wife as the beneficiary.  Id. at 472.  The court ruled that the trial court could impose a constructive trust on at least that portion of the proceeds that the insured had promised his first wife in agreeing to the dissolution decree.  While the opinion turned on the court’s preemption analysis, the decision is a helpful reminder to family law attorneys of two points.

First, preemption of a state’s family law is disfavored.  Id. at 475.  Second, “an action to recover the proceeds of a life insurance policy based on an insured’s violation of a divorce decree may be brought against any person or entity designated by the insured as a beneficiary of the policy in question.”  Id. at 481.


Lastly, the Court of Appeals also addressed the intersection of child support and adoption law .

The Court of Appeals held that, under Indiana’s adoption statutes, a trial court could not hold a mother in contempt for failing to pay child support and then hold that her consent was required to the child’s adoption.  In re the Adoption of K.S., 2012 Ind. Ap. LEXIS  599 (Ind. Ct. App. 2012).

An Indiana statute states that a parent’s consent to adoption is not required if the child is in the custody of another person, and for a period of at least one year, the parent “knowingly  fails to provide for the care and support of the child when able to do so as required by law or judicial decree.”  Ind. Code s. 31-19-9-8(a)(2).

The court noted that, fifteen days prior to the adoption hearing, the trial court had found the mother in contempt for failing to pay support for more than a year.  K.S.  at * 8.  “[A] trial court cannot hold a parent in contempt for failing to pay child support unless the parent had the ability to pay and the failure to do so was willful.”  Id.

The appellate court noted, however, that even though the mother’s consent was not needed, the trial court still needed to determine whether the adoption was in the child’s best interest, and it remanded the case to the trial court for further proceedings.  Id. at *10-11.

Penalties and Enforcement Power

            In a decision that remains under review, Sickels v. State, 960 N.E.2d 205 (Ind. Ct. App. 2012) transfer granted 969 N.E.2d 86 (Ind. 2012), the Court of Appeals discussed a number of issues related to a father’s conviction on two class C felonies and one Class D felony stemming from his failure to make any attempt to pay more than $80,000 in child support.

Of interest to family law attorneys was the court’s discussion, mostly in a footnote, of whether a deadbeat parent can be charged with multiple C felonies when his arrearage totals more than $15,000.  See Ind. Code § 35-46-1-5(a).

The court found no double jeopardy, even though the arrearage was based on a single “in gross” support order because, under the language of the statute then in effect, each of the three children provided a different element or required different evidence, thus supporting a separate conviction.  Sickels. 906 N.E.2d. at 214.  Under this prior statute, the state could only charge separate C felonies when the amount for arrearage of each child exceeded $10,000.  Id. at 211 n.4.

The Legislature amended the statute in 2001 so that a C felony could be charged when the total arrearage for “one or more children” exceeded $10,000.  The Sickels court noted this change still left some ambiguities.  Id.  A deadbeat parent owing more than $15,000 in unpaid support to two more children can only be charged with one Class C felony, at least when the arrearage stems from a single “in gross” order, because of the “one or more children” wording.  See Sanjari v. State, 942 N.E.2d 134 (Ind. Ct. App. 2011).  Yet this same parent can be charged with multiple Class D felonies.  See Gilliam v. State, 901 N.E.2d 72 (Ind. Ct. App. 2009).  The court noted that to get around these issues, some prosecutors had been charging the delinquent parent with multiple Class C felonies based on the number of civil support orders that were violated, rather than the number of unsupported defendants.  Sickels, 906 at 211 n.4.

The Indiana Supreme Court has granted transfer in this case, however, and, as the following case indicates, may give some further guidance on these issues.


The Indiana Supreme Court looked at this issue from a slightly different angle, and ruled that in criminal prosecutions for non-support involving two or more children and a total arrearage of more than $15,000, the deadbeat parent could only be convicted of one Class C felony, and the other convictions would have to remain Class D felonies.  Sanjari v. State, 961 N.E.2d 1005 (Ind. 2012).

The court rejected the State’s contention that it could apportion part of the arrearage to one child and part of the arrearage to another child, and obtain two Class C felonies so long as each apportioned amount was more than $15,000.  Id. at 1009.  It reasoned that that Class C felony was not a separate crime but an enhancement based on the aggregate of unpaid support for all children.  Id. ***

The Court of Appeals also upheld contempt findings  in two cases.

In the first, Bessolo v. Rosario, 966 N.E.725 (Ind. Ct. App. 2012), the  wife had led police to arrest her husband by teling them that a valid protection order was in place when, in fact, her dissolution decree, approved five days earlier, obligated her to dismiss the protection order.

In addition to upholding the contempt finding, the court also affirmed the trial court’s award of attorney fees and $10,000 in compensatory damages for the husband’s expenses in getting his record expunged and his inconvenience, embarrassment and mental suffering.  Id. at 732-34.

However, it overturned the 10-day sentence that the trial imposed to compel obedience to its future orders.  Id. at 733.  It held that the trial court only had authority to impose imprisonment to compel compliance with a specific order of the court, not compliance in general.  Id.


In Winslow v. Fifer, 969 N.E.2d  1087 (Ind. Ct. App. 2012), the Court of Appeals also upheld a trial court’s finding of contempt and order to pay attorney fees for the mother’s failure to pay educational support.

Mother claimed that the trial court erred by not including Father’s educational tax credit in computing educational support.  Id. at 1092.  However, the Court of Appeals found that the credit was “de minimis” and did not provide her a basis for ignoring the trial court’s order to pay father support.  Id. at 1093.  It also rejected mother’s contention that she could disregard the court’s order, which included support for her daughter’s board, because she did not know where her daughter was living.  Id.


Ed.’s Note: Part 2 of this post will look at decisions generally interpreting substantive areas of family law.

By Terry Horne

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Posted in: Family Law

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