Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Quinn v. Quinn

Court of Appeals of Indiana

October 28, 2016

Jennifer R. Quinn, Appellant-Respondent,
v.
Daniel P. Quinn, Appellee-Petitioner.

         Appeal from the Marion Superior Court The Honorable David J. Dreyer, Judge The Honorable Patrick Murphy, Magistrate Judge Trial Court Cause No. 49D10-1302-DR-5731

          ATTORNEYS FOR APPELLANT Bryan L. Ciyou Julie C. Dixon Darlene R. Seymour Ciyou & Dixon, P.C. Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Richard A Mann Meghan L. Gehring Richard A Mann, P.C. Indianapolis, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] In this contentious dissolution action, Jennifer R. Quinn ("Mother") argues that the trial court erred in: (1) awarding custody of the parties' son to Daniel P. Quinn ("Father"); (2) calculating child support; and (3) distributing the parties' property. Concluding that the trial court did not abuse its discretion in awarding custody of the parties' son to Father or in calculating child support, we affirm those portions of the dissolution order. However, we find that the trial court abused its discretion in distributing the parties' property because it did not include the value of all of the parties' assets in the marital pot. We therefore affirm in part, reverse in part, and remand with instructions for the trial court to redistribute the parties' property without the necessity of a hearing.

         [¶2] Affirmed in part, reversed in part, and remanded.

         Issues

         I. Whether the trial court abused its discretion in awarding custody of the parties' son to Father;

         II. Whether the trial court abused its discretion in calculating child support;

         III. Whether the trial court abused its discretion in distributing the parties' property;

         Facts

         [¶3] Mother and Father were married in 1993. The parties' daughter, C.Q. ("C.Q."), was born in 1994; their daughter, M.Q. ("M.Q."), was born in 1996; and their son, D.Q. ("D.Q."), was born in 2002. In January 2013, Mother left her family and moved into an apartment. She apparently took out the apartment lease in Father's name without his knowledge. Two weeks later, Mother returned to the parties' home, and Father would not let her in the house. Mother called the police, who arrived at the house and told Father he would have to leave. Father explained what Mother had done, and the police officers informed Mother that it was she who would have to leave. The following day, Mother had Father served with a protective order, which apparently required him to vacate his home and prohibited him from contacting Mother.[1] Father moved into the apartment that Mother had leased in his name.

         [¶4] In February 2013, Father filed a petition for dissolution. He subsequently learned that Mother had opened several credit card accounts and accrued substantial debt without his knowledge. Three months later, in May 2013, the parties entered into a preliminary agreement, which awarded physical custody of the children to Mother and parenting time in accordance with the parenting time guidelines to Father. Father was ordered to pay $250.00 per week in child support as well as $25.00 per week towards a $2, 958.00 child support arrearage. Mother was given exclusive possession of the marital residence and ordered to pay the first mortgage and utilities. Father was ordered to pay the second mortgage as well as private school tuition for M.Q. and D.Q. In addition, each party was ordered to pay one-half of the minimum monthly payment on several outstanding credit card balances.

         [¶5] Three months later, in August 2013, Father filed a petition seeking custody of M.Q. as well as a modification of child support. A few weeks later, Mother filed a contempt petition alleging that Father had refused to pay child support as set forth in the preliminary agreement. Almost a year later, Mother filed a second petition for contempt related to the payment of M.Q.'s private school tuition. Thereafter, the pending motions were continued multiple times, both parties changed counsel, and the parties attempted mediation but did not reach an agreement. In November 2014, M.Q. voluntarily moved in with Father following her eighteenth birthday.

         [¶6] The trial court held the dissolution hearing in January and March 2015. Before witnesses began testifying at the hearing, Mother pointed out that she had filed a request for findings of fact and conclusions pursuant to Trial Rule 52. Testimony at the hearing revealed that during the course of the marriage, Father had been the children's primary caretaker. He explained that he had gotten up early with the children to review for tests, made breakfast, taken the children to school, picked them up from school or aftercare, taken them home, fixed dinner, cleaned the house, and helped them with their homework. Father also attended the children's class parties and chaperoned their field trips. In addition, Father testified that he and D.Q. had always been especially close. Father explained that in the past, he and D.Q. had "[done] everything together, " such as getting haircuts, going to the grocery store, and just "hang[ing out." (Tr. 47). Father had coached D.Q. in every sport he had ever played since he was three years old.

         [¶7] Father further explained that although Mother did not work when the children were young, she was too busy talking on the telephone or shopping to participate in the children's activities. She did not help the children do their homework or prepare for tests because she believed that was the "teacher's job." (Tr. 43).

         [¶8] Father also explained that in the two years since Mother had had him served with a protective order, he had not been able to participate in the children's activities, including D.Q.'s sports, as he had in the past. For example, Father was at football practice in the summer of 2013 when the police showed up and led Father off the field past the team and their parents. He was handcuffed in the parking lot, taken to jail, and charged with invasion of privacy. Apparently Mother had shown up at the practice, and the police told Father that he should have left the practice as soon as Mother arrived. Further, in January 2015, shortly before the dissolution hearing, Father was coaching his son's basketball team when Mother walked in and told D.Q. to leave. The police walked in immediately thereafter and told Father to leave the premises. Father was told that he should have left the building as soon as he saw Mother walk in the door.

         [¶9] Father further explained that he had observed the impact that the separation had on his son and requested custody of D.Q. Specifically, Father testified that "[[f]or the first year when I did get to see him he would sit on my lap and cry all the time. And now --- he was with me this past weekend and he's doing better but he still cries and he always sits on my lap." (Tr. 48). Father continued that D.Q. was thirteen years old and "a big kid . . . but . . . I tuck him into bed every night I have him, he kisses me hello, he kisses me goodbye, we hug all the time. Very --- extremely close." (Tr. 48).

         [¶10] Father asked the trial court to dismiss the protective order. He explained that he had never physically or emotionally abused Mother. Rather, according to Father, Mother had been mentally and physically abusive to both Father and the children. Father explained that he never once raised his hand to her. Instead, he turned his back and just let her hit him. Father expressed his concerns about Mother's mental health and explained that Mother "[flew] off the handle daily. She [did] whatever she [could] to keep me and my children apart." (Tr. 47).

         [¶11] When asked why he had not previously challenged the protective order, Father explained that he had a different attorney at the time it was issued and he "was not aware [he] had any recourse. [He] was never given that advice. . . . [he] relied on his lawyer to take care of [him] and he didn't." (Tr. 77).

         [¶12] Father also explained that he had requested additional time with the children during the pendency of the dissolution "hundreds and hundreds of times." (Tr. 37). According to Father, "I think maybe fives [sic] it was granted to me." (Tr. 37). Father further explained that he had always been flexible with Mother and granted her requests for changes in parenting time.

         [¶13] Father was aware that D.Q. had been diagnosed with ADHD during the pendency of the dissolution; however, Mother had not given him any additional information about his son's condition. Father had "tried to get with [D.Q.'s] doctors and psychiatrists or people that he's been with . . . [but had] never been given the information." (Tr. 128). Father explained that he was unable to attend doctor's appointments because of the protective order. The protective order also prevented Father from attending parent/teacher conferences. However, Father maintained e-mail contact with his children's teachers.

         [¶14] Regarding his economic circumstances, Father testified that he was an electrician and rigger for the International Alliance of Theatrical Stage Employees and that his hourly wage varied from $19.00 to $40.00, depending on the job. He submitted two child support obligation worksheets, one showing that he earned $1175.00 per week, which did not include over time, and one showing that he earned $1700.00 per week, which included overtime. Father explained that overtime was not guaranteed and that he sometimes took it to pay off specific bills. Further, according to Father, the winter months were slow because no one wanted to come to Indiana in the middle of winter to do a show. At the time of the marriage, Father had a retirement account with a value of $136, 458.39. By the time of the dissolution, the account had grown to $234, 956.71. Also at the time of the marriage, Father owned real estate that he subsequently sold. He used $15, 000.00 of the proceeds as a down payment on the marital residence. Father also submitted a summary of his child support payments, wherein he claimed that he was current on his $250.00 per month child support payments and had in fact overpaid child support by $809.57 as of January 16, 2015.

         [¶15] Mother testified that she was a stay-at-home mom for the first eleven to twelve years of the parties' marriage. She went to beauty school when D.Q. was four years old and began working full-time when D.Q. started first grade. Mother had a financial interest in a nail salon from 2006 until 2013. At the time of the hearing, Mother was the office manager in an insurance office. Mother testified that: (1) she worked thirty-seven and one-half hours per week; (2) her hourly rate was $14.00; and (3) her weekly pay was $525.00. However, Mother's verified financial declaration listed her income as $577.00 per week. In addition, Mother introduced a single paystub into evidence, which showed that she had worked 82.50 hours during the pay period and that her hourly rate was $14.00, which computes to a weekly income of $577.50.

         [¶16] According to Mother, she had been living in the marital residence during the pendency of the dissolution and was responsible for paying the utilities and the $730.00 per month first mortgage. She explained that she soon planned to move into a $900.00 a month condominium and that Father could take possession of the marital residence because she no longer wanted it. During cross-examination, Father's counsel asked Mother if she understood that she was under a court order to maintain possession of the marital residence and pay the first mortgage until the court decided otherwise. Mother responded that she only had to make the payments until her dissolution was finalized, implying that her obligation would end that day after the final hearing.

         [¶17] Following the final hearing and before the trial court issued its findings of fact and conclusions of law, Father filed a petition for rule to show cause in April 2015. In the petition, Father stated that pursuant to the parties' preliminary agreement, Mother received temporary exclusive possession of the marital residence and was responsible for the payment of the first mortgage and utilities. According to Father, Mother had nevertheless vacated the residence and "stripped the house of all appliances, household furnishings, the gas grill from the patio, and all light fixtures." (App. 88). Mother had left the house in "total disrepair." (App. 89). Father alleged that the house smelled of animal waste and mold. In addition, Father alleged that Mother had not paid the first mortgage in three months. Father asked the trial court to order Mother to return the appliances, find Mother in contempt, and impose all available sanctions. One month later, Mother filed an emergency petition for contempt alleging that Father had failed to pay tuition at M.Q.'s private high school. According to Mother, M.Q. would not be allowed to take final examinations the following week or graduate if Father did not pay the tuition.

         [¶18] A few days later, the trial court held a hearing on the two petitions. Testimony at the hearing revealed that Father had immediately paid M.Q.'s high school tuition so that she would be able to take her final exams and graduate. The testimony further revealed that Mother had stopped paying the mortgage and utilities at the marital residence. She had also removed all the appliances, including the refrigerator, stove, washer, and dryer, and placed them in the garage at her new condominium. In addition, she had removed the gas grill and light fixtures, and the house was in disrepair, both inside and out.

         [¶19] On August 14, 2015, the trial court issued a detailed twelve-page decree of dissolution and disposition of collateral matters, which provides in relevant part as follows:

Custody of [M.Q. and D.Q.]
12.Prior to separation, [Mother] voluntarily vacated the former marital residence and left all three (3) children with [Father]. She was absent approximately two (2) weeks at which time she filed a Protective Order against [Father]. She reclaimed the home and was de facto custodian.
13. In part due to the protective order, [Father] experienced difficulty getting parenting time with the children.
14. [Father] was very involved with the children's extracurricular activities, and school functions. He assisted with coaching, field trips, and class plays. [Father] was also a member of the Men's Club at the children's school.
16. During the pendency of this case, [Father] has requested additional time with the children to which [Mother] consistently refused. [Mother] has requested additional time during holiday functions with the children for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.