Jennifer R. Quinn, Appellant-Respondent,
Daniel P. Quinn, Appellee-Petitioner.
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
of the Case
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.
Affirmed in part, reversed in part, and remanded.
Whether the trial court abused its discretion in awarding
custody of the parties' son to Father;
Whether the trial court abused its discretion in calculating
Whether the trial court abused its discretion in distributing
the parties' property;
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. Father moved into
the apartment that Mother had leased in his name.
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.
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.
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.
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).
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.
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).
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).
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).
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.
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.
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.
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
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.
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.
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.
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
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
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 ...