                                                                         Jul 16 2015, 8:47 am




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Deborah M. Agard                                            Julie Andrews
      Law Office of Deborah M. Agard                              Brian K. Zoeller
      Indianapolis, Indiana                                       Maggie L. Sadler
                                                                  Cohen & Malad, LLP
                                                                  Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In re the Paternity of                                      July 16, 2015
      M.R.A. and L.R.C.:                                          Court of Appeals Case No.
                                                                  32A01-1409-JP-386
      M.A.,
      Appellant-Petitioner,
                                                                  Appeal from the Hendricks Circuit
                                                                  Court
              v.                                                  The Honorable Jeffrey Boles, Judge
                                                                  Cause No. 32C01-1209-JP-89
      B.C.,
      Appellee-Respondent,




      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


      Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015                   Page 1 of 15
      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


      Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015   Page 2 of 15
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%.
                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

Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015            Page 3 of 15
        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 the children as secondary coverage for so long
        as she qualifies for the same.
               12. That beginning for the tax year 2013 and subsequent years,
        [Father] shall be entitled to claim [M.R.A.] as his dependent for tax
        purposes and [Mother] shall be entitled to claim [L.R.A.] as her
        dependent for tax purposes.
               13. That in the event any provision in this agreement shall be
        rejected by the Judge or subsequently determined to be invalid, all
Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015            Page 4 of 15
              provisions not affected thereby shall remain in force and effect; and it
              is the express intent of the parties that this agreement shall be honored
              by them prior to approval by the Court and without the necessity of
              approval by the Court, subject to the issues reserved for decision to the
              Court and both parties agree to cooperate with any such decisions as
              promptly as possible.
      Appellant’s Appendix at 58-61. On January 16, 2013, the trial court signed an

      “Order Approving Agreement” that appeared at the end of the agreement in the

      following form:

                     Comes now the Court, having heard the testimony presented in
              open Court January 3, 2013, and having seen and examined the
              foregoing written agreement of the parties, and finds that the
              agreement should be approved and the Court will issue a separate
              decision with respect to the issues reserved to the Court.
                    ORDERED, that the foregoing agreement is hereby approved
              and made a part of this Order.
      Id. at 61 (“2013 Order”).


[3]   Both parties thereafter filed petitions for modification raising various issues

      including custody and support. The trial court held a hearing on July 3, 2014,

      which began with the following status update:

              The Court: What’s the status of this case then?
              [Mother’s counsel]: The status of the case your Honor is that we are
              here today for a final hearing on a paternity matter. . . .
              The Court: Is that your understanding of the case [Father’s counsel]?
              [Father’s counsel]: Your Honor agreed part; we have an order from
              January two-thousand and thirteen that addressed custody and
              support. A modification was subsequently filed by [M]other in March
              of two-thousand thirteen. So we’re treating this as a modification from
              that point forward.
              The Court: Very good . . . .

      Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015         Page 5 of 15
      Tr. at 19-20. On August 11, 2014, the trial court entered Findings of Fact and

      Conclusions of Law. Finding of Fact number 18 states, “After a conference in

      chambers, the Court determined that the agreement of January 16, 2013 was a

      provisional paternity agreement and the hearing for July 3, 2014 was a final

      hearing on the initial paternity matters.”1 Appellant’s App. at 23. The court

      then concluded that the parties’ shared legal and physical custody of the

      children would continue, applying the factors for an initial custody

      determination in Indiana Code section 31-14-13-2; ordered parenting time

      changed to a “2-2-3 schedule”;2 ordered Father to pay child support in the

      amount of $143 per week, retroactive to January 1, 2012, the date the parties

      stopped cohabitating, and set his arrearage at $17,645; ordered Father to pay

      $3,046.80 to Mother as reimbursement of work-related child care expenses

      dating back to January of 2012; and ordered Father to pay Mother’s attorney’s

      fees of $19,000.


[4]   Father now appeals the trial court’s treatment of the 2013 Order as a

      provisional order as well as the child support and attorney’s fees provisions in

      the August 2014 order.




      1
       It is unclear when this conference in chambers occurred, as neither the transcript of the hearing nor the
      appendix reflect any such conference before, during, or after the July 3 hearing.
      2
       Pursuant to the 2-2-3 schedule, Mother is to have custodial time every Monday and Tuesday overnight,
      Father is to have custodial time every Wednesday and Thursday overnight, and the parties are to alternate
      weekends including Sunday overnight. Id. at 27. Although this changed the order of the parties’ weekday
      overnights, the total time the children spent with each parent did not change.

      Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015                            Page 6 of 15
                                  Discussion and Decision
                                       I. Standard of Review
[5]   The trial court made findings of fact and conclusions thereon pursuant to

      Indiana Trial Rule 52(A). “In reviewing findings made pursuant to Rule 52, we

      first determine whether the evidence supports the findings and then whether

      [the] findings support the judgment.” K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453,

      457 (Ind. 2009). We “shall not set aside the findings or judgment unless clearly

      erroneous . . . .” T.R. 52(A). A judgment is clearly erroneous when there is no

      evidence supporting the findings, when the findings fail to support the

      judgment, or when the trial court “applies the wrong legal standard to properly

      found facts.” K.I., 903 N.E.2d at 457.


[6]   Although we give considerable deference to trial courts in family law matters,

      “to the extent a ruling is based on an error of law or is not supported by the

      evidence, it is reversible, and the trial court has no discretion to reach the wrong

      result.” MacLafferty v. MacLafferty, 829 N.E.2d 938, 941 (Ind. 2005).


                                II. Provisional v. Final Order
[7]   Indiana Code section 31-14-10-1 provides that in a paternity action, “[u]pon

      finding that a man is the child’s biological father, the court shall, in the initial

      determination, conduct a hearing to determine the issues of support, custody,

      and parenting time.” However, the court may dispense with the hearing

      required by that section if “the mother and the alleged father execute and file

      with the court a verified written stipulation; or . . . the parties have filed a joint
      Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015       Page 7 of 15
      petition resolving the issues of custody, child support, and parenting time.”

      Ind. Code § 31-14-10-3. This is similar to the provisions of Indiana Code

      section 31-15-2-17(a) which allows parties to a dissolution to agree in writing to

      provisions for the custody and support of their children. In either case, the trial

      court must approve the agreement, and in doing so, it is the duty of the trial

      court to determine if the agreement is in the best interests of the children. In re

      Paternity of T.G.T., 803 N.E.2d 1225, 1228 (Ind. Ct. App. 2004), trans. denied;

      Beaman v. Beaman, 844 N.E.2d 525, 532 (Ind. Ct. App. 2006).


[8]   The trial court found that the agreement it approved in the 2013 Order was

      provisional and that the August 2014 order was a final order regarding custody,

      support, and parenting time. Provisional orders are temporary in nature and

      designed to maintain the status quo while issues are more fully developed. See

      Mosley v. Mosley, 906 N.E.2d 928, 929-30 (Ind. Ct. App. 2009). Notably, there

      is no authority in the paternity statutes for a provisional order, such as there is

      in the dissolution statutes. See Ind. Code § 31-15-4-8. Nonetheless, as the

      underlying principle behind both the paternity and the dissolution statutes is the

      best interests of the child, In re Paternity of K.J.L., 725 N.E.2d 155, 157 (Ind. Ct.

      App. 2000), as there is no prohibition on provisional orders in the paternity

      statutes, and in recognition of the realities of litigation, we see no particular




      Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015     Page 8 of 15
       reason why a trial court could not make an appropriate provisional order in a

       paternity case.3


[9]    That does not, however, mean that the 2013 Order was a provisional order. On

       the date originally set for a hearing on Father’s petition to establish paternity,

       the parties presented to the trial court an agreement regarding custody, child

       support, and parenting time. Father and Mother each testified to the court and

       affirmed their understanding of the relevant provisions. There is no indication

       in their testimony or in the written agreement itself that it was intended to be a

       provisional agreement subject to further consideration. The agreement

       acknowledges the daytime parenting time is subject to change when the

       children are in school/school age, which L.R.A. was not at the time; discusses

       summer and holiday parenting time; and apportions tax deductions for 2013

       “and subsequent years.” Appellant’s App. at 59-60. Although the parties did

       specifically reserve two issues for the trial court’s future determination, neither

       of those issues substantively impacted custody, support, or parenting time as

       between Father and Mother.


[10]   There is also no indication in the trial court’s approval of the agreement that its

       approval was provisional only or that it contemplated any future action with

       regard to the issues of custody, support, or parenting time. No future hearing




       3
         In re Paternity of C.J.A., 3 N.E.3d 1020, 1030 (Ind. Ct. App. 2014) squarely addressed this very issue and
       determined that issuing a provisional order in a paternity action was appropriate and consistent with a trial
       court’s statutory authority. This decision was vacated, however, when the Indiana Supreme Court granted
       transfer and dismissed the appeal. In re Paternity of C.J.A., 12 N.E.3d 876 (Ind. 2014).

       Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015                            Page 9 of 15
       was set, and the chronological case summary describes the case as “disposed”

       as of January 16, 2013. Appellant’s App. at 5. If no disputes had arisen

       between the parties about these issues, there is no indication that the trial court

       would have taken these issues up again. Moreover, when disputes thereafter

       did arise, the parties filed petitions for modification of the 2013 Order, rather

       than requesting a final hearing. Further, Father’s counsel noted at the outset of

       the July 3, 2014 hearing that they believed it was a modification hearing, and he

       questioned Father as to changes in circumstances since the 2013 Order. The

       trial court may now think that approving the agreement was improvident,4 but

       that does not change the essential nature of the 2013 Order: it was an order

       approving a full and final agreement between the parties as to custody, support,

       and parenting time.


                                            III. Child Support
[11]   When the trial court determined that the 2013 Order was a provisional order, it

       then decided the issues of custody, support, and parenting time as if for the first

       time, rather than as if they were being modified. Father challenges only the

       trial court’s order as to child support. An initial support order in a paternity




       4
        The trial court’s primary concern in retrospect seemed to be the provision of the agreement that no child
       support be paid by or to either party. However, the parties’ agreement to deviate from any amount the Child
       Support Guidelines would have imposed was explained as due to the parties’ shared physical custody of the
       children and the expenses Father agreed to pay. Moreover, we note that Mother resided with her parents and
       had no living expenses of her own. Under the circumstances, we cannot agree with the trial court that the
       parties’ agreement was “void as a matter of law” because it “bargain[ed] away a child’s right to be properly
       supported by both parents,” Appellant’s App. at 28, as there was a clearly stated basis supporting the
       agreement.

       Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015                       Page 10 of 15
       action may include the period dating from the birth of the child, Ind. Code § 31-

       14-11-5(a), and may order “either or both parents to pay any reasonable amount

       for child support,” Ind. Code § 31-14-11-2. A modification of support may only

       be made “upon a showing of changed circumstances so substantial and

       continuing as to make the terms [of the child support order] unreasonable” or

       where a party has been ordered to pay an amount that differs by more than

       twenty percent from the child support guideline amount if the existing order

       was issued at least twelve months prior to the petition for modification. Ind.

       Code § 31-16-8-1; see also Ind. Code § 31-14-11-2.3 (“A child support order

       issued under [the paternity support] chapter is subject to the provisions in IC 31-

       16-6 through IC 31-16-13.”). In addition, the trial court has the discretion to

       make a modification relate back only to the date a petition to modify was filed

       or any date thereafter. Hatmaker v. Hatmaker, 998 N.E.2d 758, 763 (Ind. Ct.

       App. 2013). The issue of child support had been initially determined by the

       2013 Order, and any change thereafter needed to be considered under the

       modification standard. The trial court therefore committed an error of law in in

       its August 2014 order by applying the initial determination standard and

       ordering Father to pay child support dating back to the physical separation of

       the parties. The trial court should have applied the modification standard to the

       issue of child support and could relate such modification back only to the date

       Mother filed her petition to modify.


[12]   As the trial court’s child support order is based on the erroneous finding that it

       was considering all issues anew, we reverse the trial court’s August 2014 order


       Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015   Page 11 of 15
       as to child support issues and remand for further proceedings under the

       appropriate standard. We note that the trial court is not required to hold a new

       hearing unless either party requests it or the trial court determines in its

       discretion that one is necessary.


                                     IV. Child Care Expenses
[13]   The trial court also found that Mother had incurred work-related child care

       expenses from the time she and Father separated in January 2012 until March

       2014 and ordered Father to reimburse Mother for amounts she spent in excess

       of her proportional share. Paragraph 1 of Child Support Guideline 3E provides

       in part:

               Child care costs incurred due to employment or job search of both
               parent(s) should be added to the basic obligation. It includes the
               separate cost of a sitter, day care, or like care of a child or children
               while the parent works or actively seeks employment. Such child care
               costs must be reasonable and should not exceed the level required to
               provide quality care for the children.
       The commentary to Guideline 3E provides that work-related child care

       expenses are “an income-producing expense of the parent.”


[14]   The evidence does not support a finding that the child care expenses Mother

       incurred were reasonable or work-related. Mother submitted as an exhibit a

       summary of daycare/preschool costs accompanied by some receipts which

       show that from January 2012 to July 2012, the parties split the $4,500 cost of

       daycare. From February 2012 to May 2013, Mother paid $1,739 to the YMCA

       for M.R.A. and from February 2013 to April 2013, she paid $1,376 to ABC123


       Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015        Page 12 of 15
       daycare for L.R.A. From August 2013 to March 2014, Father paid $5,805 in

       preschool costs. Mother testified that during the period the children were at

       ABC123 and the YMCA, she was taking classes and either not working at all or

       working approximately four hours per week. Also during that period, Father

       had indicated he was available to have the children with him.


[15]   This evidence does not support a finding that the child care expenses Mother

       paid to ABC123 or the YMCA were reasonable—as Father’s availability to care

       for the children obviated the need for child care expenses to be incurred at all—

       and further does not support a finding that the expenses were work-related or

       income-producing—as Mother was either not working during that time or was

       working minimally and she failed to connect the child care expenses to her

       hours of employment. We therefore conclude the trial court’s judgment in this

       regard is clearly erroneous.


                                          IV. Attorney’s Fees
[16]   Indiana Code section 31-14-18-2 provides:

               (a) The court may order a party to pay:
                        (1) a reasonable amount for the cost to the other party of
                        maintaining an action under this article; and
                        (2) a reasonable amount for attorney’s fees, including amounts
                        for legal services provided and costs incurred, before the
                        commencement of the proceedings or after entry of judgment.
       In making such an award, “the trial court must consider the resources of the

       parties, their economic condition, the ability of the parties to engage in gainful

       employment and to earn adequate income, and such factors that bear on the

       Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015       Page 13 of 15
       reasonableness of the award.” A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 120,

       127 (Ind. Ct. App. 2004), trans. denied. The trial court may also consider any

       misconduct by one party that causes the other party to directly incur additional

       fees. Id. “When one party is in a superior position to pay fees over the other

       party, an award of attorney fees is proper.” Id. at 127-28. We review a trial

       court’s award of attorney’s fees for an abuse of discretion. Id. at 127.


[17]   At Mother’s request, the trial court ordered Father to pay her attorney’s fees in

       the amount of $19,000. In support of this order, the trial court made the

       following findings:

               140. At the time of the hearing, Father was employed with FedEx,
               earning approximately sixty thousand dollars ($60,000.00) per year.
               141. That, at the time of the hearing, Mother had been minimally
               employed while attending Ivy Tech College. Mother’s actual income
               averages around eight thousand ($8,000.00) a year.
               142. Father is in a better position to pay the fees which have been
               incurred and should be responsible for paying Mother’s fees for the
               following reasons:
                     a. He earns more income or has the potential to earn more
               income than Mother;
                        b. He has reduced living expenses since he resides with his
               Wife;
                       c. Father’s behavior throughout this more than two year
               protracted litigation has caused Mother to incur substantially more
               fees including Mother defending two CPS calls and defending Father’s
               pending contempt charges until the day of hearing and defending
               Father’s request for sole custody; and
                        d. His petition to modify custody has been denied.




       Court of Appeals of Indiana | Opinion 32A01-1409-JP-386 | July 16, 2015        Page 14 of 15
       Appellant’s App. at 56. Although we question the trial court’s finding

       regarding Father’s “reduced living expenses” given the evidence that Mother

       resides with her parents and has no living expenses, Father undeniably makes

       substantially more than Mother (both her actual income and her imputed

       income5). In addition, our resolution of this appeal moots at least part of the

       child support arrearage the trial court reduced to judgment against Father. For

       both of these reasons, Father is in a superior position to pay fees, and we cannot

       say the trial court abused its discretion in ordering him to do so.



                                                 Conclusion
[18]   The trial court’s order for child support is reversed, and this cause remanded to

       the trial court for further consideration of Mother’s petition for modification of

       child support consistent with this opinion. The trial court’s entry of judgment

       against Father for reimbursement of child care expenses is also reversed, but the

       trial court’s entry of judgment against Father for Mother’s attorney’s fees is

       affirmed.


[19]   Reversed in part, affirmed in part, and remanded.


       May, J., and Mathias, J., concur.




       5
        In calculating child support, the trial court imputed income to Mother at the minimum wage, $290.00 per
       week, or approximately $15,000 per year.

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