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Morales Perez v. Mounce

Court of Appeals of Indiana

September 4, 2018

Emilio Alfredo Morales Perez, Appellant-Petitioner,
v.
Lindsey Mounce, Appellee-Respondent

          Appeal from the Marion Superior Court The Honorable James Joven, Judge, The Honorable Kimberly D. Mattingly, Magistrate Trial Court Cause No. 49D13-1303-DR-8236.

          Attorney for Appellant Oliver Younge Younge Law Office Indianapolis, Indiana.

          VAIDIK, CHIEF JUDGE.

         Case Summary

         [¶1] Emilio Alfredo Morales Perez ("Father") was denied parenting time with his daughter by Lindsey Mounce ("Mother"), and the trial court ordered that Father could make up "all missed parenting time." Father then asked the trial court to reduce his child-support obligation to reflect the parenting time that he missed and is now making up, but the trial court did not do so. Because awarding Father credit for the make-up parenting time would result in an impermissible double credit, we affirm the trial court in this and all other respects.

         Facts and Procedural History

         [¶2] During their marriage, Mother and Father had a daughter, M.M. ("Child"), born in January 2013. The parents divorced in November 2013. Because Father "had not had overnights with the child for a while and the child still nursed," the trial court "established physical custody in Mother, with Father having parenting time to be phased in to regular year round Indiana Parenting Time Guidelines ('IPTG') parenting time, including holidays per the IPTG . . . ." July 20, 2017 Order on Petitioner's Motions for Rule to Show Cause and Modification of Custody and Parenting Time, pp. 1-2 (trial court summarizing history of case). Father was also ordered to pay child support.[1]

         [¶3] In April 2017, Father filed a combined motion for rule to show cause and motion to modify custody and parenting time alleging that Mother "withholds parenting time at will and on a whim" and requesting "sole or joint legal and physical custody" of Child. April 28, 2017 Consolidated Verified Petition for Rule to Show Cause, and Motion to Modify Custody and Parenting Time, pp. 2, 4. After a hearing, the trial court issued an order in July 2017 providing that Father was to make up his missed parenting time with Child as follows:

18. Father shall make up all missed parenting time at days and times of his own choosing, as long as those dates are not provided at the "last minute" to Mother. Father may provide a calendar referencing the chosen dates for exercising make-up parenting time, in addition to his regular parenting time, and if so attached, shall be fully incorporated as part of this Order . . . ."

         July 20, 2017 Order on Petitioner's Motions for Rule to Show Cause and Modification of Custody and Parenting Time, p. 3. Attached to the court's order was a calendar for 2017 and 2018 setting forth how Father planned to make up his missed parenting time, which amounted to 239 missed days from 2014 to 2017. Id.; see also Tr. pp. 34-35.

         [¶4] As for Father's request to modify custody and parenting time, the court found that "Father has not met the burden required for a modification of custody at this time . . . ." July 20, 2017 Order on Petitioner's Motions for Rule to Show Cause and Modification of Custody and Parenting Time Held, p. 4. However, the court admonished Mother that if she did not obey the court's order, it would consider modifying custody or parenting time as a sanction.

         [¶5] About two weeks later, Father filed a motion to modify his child-support obligation because he and his fiancée just had a baby. Mother responded by filing a motion for rule to show cause, alleging that Father had failed to pay his portion of child-care expenses. At a September 19, 2017 hearing on the motions, the parents stipulated to some of the issues and said they were confident that they could resolve the remaining issues of child support and child care. They believed that they would have an agreement within ten days and would send a copy of the agreement to the court for approval.

         [¶6] No agreement was reached. Instead, the parents engaged in a contentious discovery battle regarding Father's wages and employment contract. On October 19, 2017, Mother sent Father a second request for production of documents, specifically requesting all of Father's paystubs from May 2015 "through present" as well as his employment contract. Appellant's App. Vol. II p. 122. When Father did not timely respond, Mother's attorney sent Father's attorney multiple emails requesting copies of the documents. December 20, 2017 Motion to Compel Discovery, Exs. A-D (emails between attorneys). Although Father eventually responded to Mother's second request for production of documents, he only included his paystubs through September 2017, and he did not provide his employment contract. As a result, in late December 2017, Mother filed a motion to compel discovery asking the court to compel Father to provide his updated paystubs and employment contract. Attached to the motion were copies of the emails between Mother's attorney and Father's attorney regarding the disputed documents. On January 2, 2018, the trial court granted Mother's motion to compel and ordered Father to provide the documents within five days.

         [¶7] A hearing on pending issues was held on January 16, 2018. Tr. pp. 4-5. Child had just turned five years old. The trial court opened the hearing by asking Father's attorney if Father had given his employment contract to Mother pursuant to its January 2 order to compel. Father's attorney said Father hadn't done so because of the nondisclosure agreement. The court rejected this argument and explained that Father had multiple options for how to comply with discovery without violating the nondisclosure agreement, including marking it "for attorney eyes only." Id. at 7. The court asked for a copy of Father's employment contract, which Father's attorney eventually turned over. The court then asked Father's attorney if Father had given all of his paystubs to Mother, and Father's attorney said yes. However, Mother's attorney interjected that the last paystub she had was from September 2017. Father was instructed to hand over his 2017 ...


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