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In re Paternity of M.R.A.

Court of Appeals of Indiana

July 16, 2015

In re the Paternity of M.R.A. and L.R.C.: M.A., Appellant-Petitioner,
v.
B.C., Appellee-Respondent,

Page 288

[Copyrighted Material Omitted]

Page 289

Appeal from the Hendricks Circuit Court. The Honorable Jeffrey Boles, Judge. Cause No. 32C01-1209-JP-89.

ATTORNEY FOR APPELLANT: Deborah M. Agard, Law Office of Deborah M. Agard, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Julie Andrews, Brian K. Zoeller, Maggie L. Sadler, Cohen & Malad, LLP, Indianapolis, Indiana.

Robb, Judge. May, J., and Mathias, J., concur.

OPINION

Page 290

Robb, Judge.

Case Summary and Issues

[¶1] Michael Ayers (" Father" ) appeals the trial court's order regarding custody, parenting time, and child support for his two children, M.R.A. and L.R.A, with Brandy Caldwell (" Mother" ). He raises two issues for our review: 1) whether the trial court erred in vacating an agreed paternity order and establishing Father's child support obligation and setting his arrearage, including reimbursement to Mother for child care costs; and 2) whether the trial court erred in ordering Father to pay Mother's attorney's fees. Concluding the trial court did not abuse its discretion in its determination regarding attorney's fees, we affirm that part of the trial court's order. However, concluding the trial court applied an incorrect legal standard to the determination of child support and that its judgment regarding child care expenses is unsupported by the evidence, we reverse and remand in part.

Facts and Procedural History

[¶2] M.R.A. was born out-of-wedlock to Mother in 2006, and Father executed a paternity affidavit at that time. In 2007, Mother married Vu Ho, and L.R.A. was born during that marriage. After Mother and Ho were divorced in 2012, Father filed a petition to establish paternity of L.R.A. and to determine issues of custody, support, and parenting time with respect to both children. A subsequent DNA test confirmed that Father was the biological father of L.R.A. When the parties appeared on January 3, 2013 for a scheduled hearing on Father's petition, Father's attorney advised the court that an agreement had been reached: " The parties agree on the paternity of both of these children now and they agree on parenting time, custody, support, everything." Transcript at 5. Mother's attorney agreed with that statement, noting only that there was a procedural issue regarding whether separate cause numbers were required for each child. The parties testified to the terms of their agreement. Mother's attorney then prepared for the court's approval the following written agreement that was signed by both parties and their attorneys:

1. That the issue of the rights of Vu Ho, who is the presumed father of [L.R.A.] based on [Mother's] marriage to him and subsequent birth of the child during the marriage, remain for resolution by the Court.
2. That the issue of whether this action ought to be dismissed as to one of the children and an additional cause number sought for that child, either by petition and payment of the filing fee or petition to waive such payment is reserved for the Court's determination.
3. That in the event of dismissal of one of the children from this action and the filing of a petition respecting the paternity, support and/or custody of that child, such action shall be consolidated immediately within this cause and the agreement of the parties deals with paternity of [L.R.A.] and the custody, support and parenting time of both [M.R.A.] and [L.R.A.]
4. That [Father] is the father of [M.R.A.] born to [Mother] February 18, 2006 . . . and that paternity was established by the execution of an affidavit at the time of her birth.
5. That [Father] is the father of [L.R.A.] born to [Mother] August 29, 2008 . . . at a time when [Mother] was married to Vu Ho (and their marriage was subsequently dissolved August 7, 2012 . . .), and both parties are satisfied that the DNA testing they voluntarily underwent during the pendency of this matter established [Father's] paternity probability at 99.99%.

Page 291

6. That [L.R.A.'s] surname shall be changed to Ayers and her birth certificate shall be ordered amended to show [Father] . . . as the father.
7. That the parties shall share joint legal custody and joint physical custody of the children and shall divide parenting time upon the following schedule: On Mondays and Wednesdays the children shall always spend overnights with [M]other; on Tuesdays and Thursdays the children shall always spend overnights with [F]ather; and on weekends (that is, Friday, Saturday and Sunday overnights) the parties shall alternate weekends with the children . . .; further provided that because [F]ather works at nights and sleeps days, while [M]other is unemployed, the children (subject to either of them being school age and at school most of the day) shall spend the daytimes with [M]other as day care for [F]ather unless a member of [F]ather's household is home on any particular day and the children shall be in day care and/or pre-school when [M]other is not so available; and further provided that the parties may agree to change this schedule from time to time to serve the best interest of the children as they deem necessary.
8. That each party shall in addition to the foregoing parenting schedule of regular times, be entitled to select a one week period each summer for an uninterrupted week for the children with that parent; that the holidays shall be as agreed upon and in the absence of agreement pursuant to the Indiana Parenting Time Guidelines with [F]ather treated as the non-custodial parent for the purposes of such guidelines only.
9. That there shall be a $0.00 support order against each of the parents and the parties are deviating from the Indiana Child Support Guidelines on account of the equal split parenting time, [M]other's current unemployment and the specific expenses [F]ather will be paying: [Father] shall pay all uninsured medical expenses incurred by the children (including reimbursement to [Mother] of any necessary such expense out of her pocket upon presentation of the receipt) and all educational expenses including any day care and/or pre-school.
* * *
11. That as a cash medical support order, the deviation reasons of paragraph 9 shall apply and [Father] shall provide health insurance for both children and shall pay all of the uninsured medical, dental and optical expenses for the children and [Mother] shall supply her Medicaid coverage for ...

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