MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Jan 30 2019, 9:43 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Cassandra A. Kruse                                       Denise F. Hayden
EMSWILLER, WILLIAMS, NOLAND &                            LACY LAW OFFICE, LLC
CLARKE, LLC                                              Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

C.B.,                                                    January 30, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-DC-1547
        v.                                               Appeal from the Hendricks
                                                         Superior Court
L.B.,                                                    The Honorable Mark A. Smith,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         32D04-1703-DC-165



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019                  Page 1 of 12
                                          Case Summary
[1]   C.B. (“Husband”) appeals the trial court’s Findings, Conclusions, and Decree

      of Dissolution, following a bifurcated bench hearing.


[2]   We affirm in part, reverse in part, and remand with instructions.



                                                    Issues
[3]   Husband raises three issues on appeal, which we restate as follows:


              (1) Whether the trial court abused its discretion when it denied
              Husband’s claim for spousal maintenance.


              (2) Whether the trial court erred in deviating from the
              presumptive child support obligation.


              (3) Whether the trial court abused its discretion when it awarded
              L. B. (“Wife”) $250.00 for attorney fees incurred in moving to
              compel discovery responses.


                            Facts and Procedural History
[4]   Husband and Wife (collectively, “Parties”) were married on August 14, 2004,

      and had one child, E.B., born September 28, 2008. Until May of 2012, Parties

      both worked full-time. In May of 2012, Husband was involved in a serious

      accident at his place of employment. His injuries required surgery and other

      treatments and left him unable to work for a period of time. During that time,

      Husband received Worker’s Compensation benefits which he used to pay


      Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019   Page 2 of 12
      marital expenses, such as the mortgage on the family home. Husband also

      received over $100,000 in life insurance proceeds when his grandfather died in

      2016.


[5]   On March 10, 2017, Wife filed a petition for dissolution of the marriage.

      Parties had a final dissolution hearing on March 16 and March 23, 2018. On

      May 4, 2018, the trial court issued “Findings of Fact, Conclusions[,] and

      Decree of Dissolution.” Appealed Order at 1. The trial court ordered that

      Parties were to have joint legal custody of E.B., with Mother having primary

      physical custody. Father was granted parenting time pursuant to the Indiana

      Parenting Time Guidelines, with additional midweek overnight parenting time.

      In addition, the trial court made the following relevant findings:


                                                      ***


              44. Wife earns approximately $54,000/year gross income, or
              $1,038.00/week.


              45. Husband currently has no weekly income. He has not
              worked full-time since a work-related accident in 2012. He has
              applied for disability and was denied. However, he never applied
              for disability until August 2017, after the filing of the Petition in
              this case. By his own admission, Husband has not actively
              looked for any work that could accommodate him.


              46. Wife provides health insurance and dental insurance for
              [E.B.] at a cost of $23.15 per week. Wife shall continuance [sic]
              to provide health and dental insurance [for E.B.] for so long as it
              is offered to her through her employment at a reasonable cost.


      Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019   Page 3 of 12
        47. In May 2012, Husband was involved in a serious forklift
        accident at work. The accident left Husband severely injured and
        Husband had to have several surgeries and treatment over the
        course of nearly three (3) years.


        48. Husband requested spousal maintenance pursuant to I.C. §
        31-15-7-2 of $2,000/month. According to Husband, he is unable
        to work. He testified that he suffers from intense pain and
        swelling in his left leg, and depression. Husband testified that he
        feels paralyzed from his knee down. He claims [that he is]
        having difficulty walking or moving around easily.


        49. Doctor Andrew Campbell is Husband’s family medical
        doctor. He has treated Husband since 2011. He described
        Husband as having a chronic left sciatic nerve lesion due to a
        remote injury.


        50. Husband has a history of deep vein thrombosis. However,
        this is not a current diagnosis and he is not currently having any
        symptoms of the same.


        51. Husband is overweight. As of March 2, 2018, Husband
        weighed over 400 pounds. Any functional limitations are
        compounded by Husband’s weight. Husband sees a weight
        specialist to address his weight issues.


        52. Husband takes multiple medications and sees a
        psychologist for depression. Husband is currently treating with
        Dr. Mossbarger for depression. Husband has been cooperative in
        his treatment for depression and his symptoms are being
        managed by both medicine and therapy.




Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019   Page 4 of 12
        53. While Husband has expressed some difficulty with getting
        himself out of bed due to his depression, there was no indication
        that he is unable to parent [E.B.].


        54. Husband was able to do some work after his injury when
        he helped Wife work her second job of data entry in 2014.


        55. Husband told the GAL [Guardian ad Litem] that he did
        not want to apply for disability and that he preferred to work. He
        further indicated to the GAL that he only needed minor
        accommodations.


        56. Husband has had the exclusive access to and use of over
        $100,000 from his grandfather’s life insurance proceeds that is
        being apportioned to him in the final division of the marital
        estate. The proceeds were received just before the date of final
        separation.


        57. As of the final hearing, Husband had $6,000.00 in savings
        and $1,000.00 in checking.


        58. Considering I.C. § 31-15-7-2, the Court finds Husband’s
        request for permanent spousal disability maintenance should be
        denied. Husband’s request for $2,000/month to be paid is
        wholly unreasonable. [Wife] only makes $54,000.00 per year
        gross income. Husband’s request was for Wife to pay him
        approximately 44% of her gross income. Moreover, the
        evidence, including his medical records, does not support a
        finding of a permanent disability preventing Husband from
        returning to any form of work. Exhibit 40 provides a detailed
        summary of Husband’s progression from being unable to work
        when he initially went to Ortho Indy on June 6, 2012 to being
        “able to return to full duty work status with no restrictions” as of
        May 11, 2015.


Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019   Page 5 of 12
         59. It is appropriate to impute to Husband minimum weekly
         gross income of $290.00 consistent with full-time minimum wage
         for purposes of child support.


         60. Application of the Child Support Guidelines results in a
         recommended $50.00 per week obligation to be paid by Wife to
         Husband.[1] However, the Court deviates and orders a $0.00
         child support obligation at this time because Wife will be paying
         all controlled expenses.


         61. Wife shall be responsible for the first $600.00 in annual
         uninsured healthcare expenses for [E.B.]. The balance shall be
         split with Wife paying 78% and Husband paying 22%.


                                                   ***


         78. Wife requested that Husband be ordered to pay her $250
         in attorney fees because of a discovery dispute that resulted in
         Wife filing a Motion for Order Compelling Discovery on June
         24, 2017. The Court finds Wife’s requested $250.00 in expenses
         reasonable. Therefore, the Court orders Husband to pay Wife
         $250.00 in 30 days from this order for her filing the Motion for
         Order Compelling Discovery on June 24, 2017.


                                                   ***


Appealed Order at 6-8, 13. Husband now appeals.




1
  The order is not accompanied by a child support worksheet. The record contains two child support
worksheets (Ex. Vol. 4, Exs. 34 and 35), although it appears that neither of those worksheets were used by
the trial court in its ultimate child support calculation, as neither worksheet results in a recommended $50.00
per week obligation to be paid by Wife.

Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019                   Page 6 of 12
                                 Discussion and Decision
                                      Spousal Maintenance
[6]   Husband challenges the trial court order denying his request for spousal

      maintenance. We review such an order for an abuse of discretion and we will

      reverse only if the decision is clearly against the logic and effect of the facts and

      circumstances of the case. E.g., Augspurger v. Hudson, 802 N.E.2d 503, 508 (Ind.

      Ct. App. 2004). Moreover, where, as here, the trial court enters findings of fact

      and conclusions of law pursuant to Indiana Trial Rule 52, we will set aside such

      findings “only if they are clearly erroneous in that the record is devoid of facts

      or inferences to support the findings, or that the judgment is unsupported by the

      findings.” Id. at 509 (quoting Fuehrer v. Fuehrer, 651 N.E.2d 1171, 1173 (Ind.

      Ct. App. 1995), trans. denied). In making such a determination, we neither

      reweigh the evidence nor reassess the credibility of the witnesses. Id.


[7]   Indiana Code Section 31-15-7-2 allows a court to award a spouse post-

      dissolution “incapacity maintenance” if the court “finds a spouse to be

      physically or mentally incapacitated to the extent that the ability of the

      incapacitated spouse to support himself or herself is materially affected.” See

      also Palmby v. Palmby, 10 N.E.3d 580, 583 (Ind. Ct. App. 2014). Here, the trial

      court found that Husband was able to work. Citing Husband’s medical records

      from Ortho Indy in Exhibit 40, the trial court noted those documents state that,

      as of May 11, 2015, Husband was “able to return to full duty work status with

      no restrictions.” Confidential Ex. Vol. V, Ex. 40. The court also noted that


      Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019   Page 7 of 12
      Husband admitted that he has “not actively looked for any work that could

      accommodate him” and that he “only needed minor accommodations” to

      work. Appealed Order at 6, 7. Furthermore, the court found that Husband

      had, in fact, done some work after his injury when he helped Wife with her data

      entry job. All of that evidence supports the trial court’s finding that Husband

      does not have “a permanent disability preventing Husband from returning to

      any kind of work.” Id. at 8. And that finding supports the trial court’s

      conclusion that Husband’s request for spousal maintenance should be denied.

      Husband’s assertions to the contrary are merely requests that we reweigh the

      evidence, which we cannot do. Augspurger, 802 N.E.2d at 508.


                                  Child Support Calculation
[8]   Husband challenges the trial court’s calculation of child support. On review,

      we afford the trial court broad discretion in fashioning child support orders, and

      we will reverse only if the child support determination is clearly against the

      logic and effect of the facts and circumstances. E.g., Fields v. Fields, 749 N.E.2d

      100, 104-05 (Ind. Ct. App. 2001), trans. denied. Moreover, “weight and

      credibility issues are disregarded and only the evidence and reasonable

      inferences favorable to the judgment are considered.” Id. (citing Kinsey v.

      Kinsey, 640 N.E.2d 42, 43-44 (Ind. 1994)). And we set aside the trial court

      findings only if they are clearly erroneous. Ind. Trial Rule 52(A).




      Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019   Page 8 of 12
[9]    Husband contends that the trial court erred when it reduced Wife’s $50 child

       support obligation2 to $0 “because Wife will be paying all controlled expenses.”

       Appealed Order at 8. He asserts that reduction was erroneous because Wife’s

       payment of the controlled expenses is already factored into the child support

       obligation. We agree.


[10]   Indiana’s Child Support Guidelines (“Guidelines”) “are based on the

       assumption the children live in one household with primary physical custody in

       one parent who undertakes all of the spending on behalf of the children.”

       Guideline 6, Analysis of Support Guidelines cmt. The Guidelines define

       “controlled expenses” as “items like clothing, education, school books and

       supplies, ordinary uninsured health care[,] and personal care.” Id., Controlled

       Expenses cmt. The controlled expenses are “the sole obligation” of the

       custodial parent who does not receive a parenting time credit. Id., Analysis of

       Parenting Time Costs cmt. These controlled expenses “account for 15% of the

       cost of raising the child,” id., Controlled Expenses cmt., and “are assumed to be

       equal to 15% of the Basic Child Support Obligation,”3 id., “Analysis of Parenting

       Time Costs” cmt. (emphasis added). Thus, the Basic Child Support Obligation

       already includes controlled expenses. Id. This is why the comments note that

       the controlled expenses are “generally not a consideration unless there is equal




       2
         It is undisputed that the Guidelines allow a trial court to award child support to a non-custodial parent. See
       R.B. v. K.S., 25 N.E.3d 232, 235 (Ind. Ct. App. 2015) (citing Guideline 3(F)).
       3
         The “Basic Child Support Obligation” is the amount of support calculated by applying the Guideline
       Schedules for Weekly Support Payments to the parents’ combined weekly adjusted income. Guideline 3(D).

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019                   Page 9 of 12
       parenting time[,]” and they “are not pertinent for litigation.” Id., Controlled

       Expenses cmt.


[11]   The trial court abused its discretion when it reduced Wife’s $50 child support

       obligation to $0 on the grounds that Wife will be paying all controlled expenses,

       as her payment of controlled expenses was already taken into consideration in

       reaching the amount of the child support obligation.4


                                               Attorney’s Fees
[12]   Husband maintains that the trial court erred when it ordered him to pay Wife

       $250 in attorney fees incurred in filing a motion to compel discovery. Husband

       does not disagree that there was a discovery dispute which required Wife to file

       a motion to compel. Nor does he dispute that the trial court correctly granted

       the motion to compel. Rather, he contends that the trial court erred in ordering

       him to pay the fees for such a motion because Husband had already paid $900

       towards Wife’s attorney fees, and Husband has significantly less income than

       Wife.


[13]   The “purposes of sanctioning discovery violations ‘is not merely to penalize

       those whose conduct may be deemed to warrant such a sanction, but to deter

       those who might be tempted to such conduct in the absence of such a



       4
         Husband asserts for the first time in his reply brief that the trial court erred in “imput[ing] income to
       Husband at minimum wage” when calculating the child support obligation. Reply Br. at 6. However, claims
       raised for the first time in a reply brief are waived. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968,
       977 (Ind. 2005) (citation omitted) (“The law is well settled that grounds for error may only be framed in an
       appellant’s initial brief and if addressed for the first time in the reply brief, they are waived.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019                 Page 10 of 12
       deterrent.’” Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012) (quoting Nat’l

       Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 (1976)). We

       review a trial court’s sanction for a discovery violation for an abuse of

       discretion. Id. And a trial court’s “discovery rulings are given a strong

       presumption of correctness because they are usually fact-sensitive.” Gonzalez v.

       Evans, 15 N.E.3d 628, 633 (Ind. Ct. App. 2014), trans. denied. There is also “a

       presumption that attorney fees will be awarded to a party who successfully

       moves to compel discovery.” Id. at 640.


[14]   Here, it is undisputed that the trial court awarded Wife $250 in attorney fees

       because she successfully moved to compel Husband to comply with her

       discovery requests. Husband has failed to provide any evidence or persuasive

       argument to rebut the presumption that such a discovery sanction was correct.

       His arguments that he had already paid a portion of Wife’s attorney fees and

       that he has less money than Wife are irrelevant to the purpose for which

       discovery violation sanctions are issued. The trial court did not abuse its

       discretion in issuing its discovery sanction.5




       5
         Once again, Husband raises an argument for the first time in his reply brief; he contends that the attorney
       fee affidavit in support of the request for sanctions indicates that Wife’s attorney only spent .30 hours of time
       on the motion to compel. Reply Br. at 6. That argument is waived. Monroe Guar. Ins. Co., 829 N.E.2d at
       977. Waiver notwithstanding, Husband is incorrect. The attorney fee affidavit reflects that Wife’s attorney
       spent 1.30 hours of time on the motion to compel. Ex. Vol. IV, Ex. 66.

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019                    Page 11 of 12
                                               Conclusion
[15]   The trial court did not abuse its discretion in denying Husband’s request for

       spousal maintenance and requiring Husband to pay $250 of Wife’s attorney fees

       as a sanction for a discovery violation. However, the trial court did err in

       reducing Wife’s $50 child support obligation to $0 on the grounds that Wife will

       be paying all controlled expenses.


[16]   Affirmed in part, reversed in part, and remanded with instructions to enter a

       new child support order.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1547 | January 30, 2019   Page 12 of 12
