MEMORANDUM DECISION
                                                                May 19 2015, 9:22 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Edward J. Calderaro                                      Jill S. Swope
Sachs & Hess, P.C.                                       Sterba & Swope, LLP
St. John, Indiana                                        Schererville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of:                                   May 19, 2015
                                                         Court of Appeals Case No.
John Mikicich,                                           45A05-1407-DR-355
Appellant,                                               Appeal from the Lake Circuit Court;
                                                         The Honorable Elizabeth F. Tavitas,
        v.                                               Judge;
                                                         45D03-1209-DR-739
Claudia Mikicich,
Appellee.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015     Page 1 of 14
[1]   John Mikicich (Husband) appeals portions of the decree dissolving his marriage

      to Claudia Mikicich (Wife).


[2]   We affirm.


                             Facts and Procedural History
[3]   Husband and Wife were married in 1990, they separated in 2011, and their

      marriage was dissolved in 2014. They have two children, one of whom is

      emancipated. Husband had worked for ArcelorMittal since 1978. Wife stayed

      at home to raise the children and later worked part-time for a church. Husband

      was fired in 2012 after he stole copper from his employer. He was charged with

      felony theft and entered a plea of guilty to misdemeanor theft. He was allowed

      to keep his pension, and he received accrued vacation and sick pay totaling

      $25,000. He put that money in his 401(K) account. Husband received one call-

      back for a new job he applied for, but he failed a drug test and was not hired.


[4]   The trial court found Husband’s loss of income was due to his intentional

      misconduct, and it attributed to Husband an annual income of $95,000. It

      awarded to Wife sixty percent of the assets acquired during the marriage.

      Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015   Page 2 of 14
                                   Discussion and Decision
[5]   The record does not reflect either party asked the trial court for specific findings

      of fact and conclusions of law.1 Instead the trial court entered specific findings

      and conclusions sua sponte. The same standard of review applies when the trial

      court enters specific findings and conclusions gratuitously or at the request of a

      party, “with one notable exception.” Breeden v. Breeden, 678 N.E.2d 423, 425

      (Ind. Ct. App. 1997). When the trial court enters such findings sua sponte, the

      specific findings control only as to the issues they cover, while a general

      judgment standard applies to any issue upon which the court has not found. Id.

      We may affirm a general judgment on any theory supported by the evidence

      adduced at trial. Id.


[6]   Appellate deference to the determinations of our trial court judges, especially in

      domestic relations matters, is warranted because of their unique, direct

      interactions with the parties face-to-face, often over an extended period of time.

      D.C. v. J.A.C., 977 N.E.2d 951, 956 (Ind. 2012). As they are “enabled to access

      [sic] credibility and character through both factual testimony and intuitive

      discernment, our trial judges are in a superior position to ascertain information

      and apply common sense, particularly in the determination of the best interests




      1
        Husband offers a standard of review articulated in Bandini v. Bandini, 935 N.E.2d 253, 258 (Ind. Ct. App.
      2010). There, pursuant to a husband’s written request, the trial court entered specific findings of fact and
      conclusions of law. As neither Husband nor Wife requested findings herein, the Bandini standard therefore
      does not apply to the case before us.



      Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015                Page 3 of 14
      of the involved children.” Id. (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind.

      2011)). Appellate courts “are in a poor position to look at a cold transcript of

      the record, and conclude that the trial judge, who saw the witnesses, observed

      their demeanor, and scrutinized their testimony as it came from the witness

      stand, did not properly understand the significance of the evidence.” Id. at 956-

      57 (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)).


[7]   The standard of review is not de novo; under these circumstances, appellate

      courts employ a clear-error standard. Id. at 957. Consequently, on appeal it is

      not enough that the evidence might support some other conclusion. It must

      positively require the conclusion contended for by appellant before there is a

      basis for reversal. Id. at 957. We will not substitute our own judgment if any

      evidence or legitimate inferences support the trial court’s judgment. Id.


                                          Imputed Income

[8]   The trial court properly imputed income to Husband. The Indiana Child

      Support Guidelines provide that if a parent is voluntarily unemployed or

      underemployed, child support shall be determined based on potential income.

      Ind. Child Support Guideline 3(A)(3). “A determination of potential income

      shall be made by determining employment potential and probable earnings level

      based on the obligor’s work history, occupational qualifications, prevailing job

      opportunities, and earning levels in the community.” Id. The purposes behind

      determining potential income are to “discourage a parent from taking a lower

      paying job to avoid the payment of significant support” and to “fairly allocate


      Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015   Page 4 of 14
       the support obligation when one parent remarries and, because of the income of

       the new spouse, chooses not to be employed.” Child Supp. G. 3 cmt. 2(c).


[9]    A trial court has wide discretion with regard to imputing income to ensure the

       child support obligor does not evade his or her support obligation. Miller v.

       Sugden, 849 N.E.2d 758, 761 (Ind. Ct. App. 2006), trans. denied. But child

       support orders cannot be used to “force parents to work to their full economic

       potential or make their career decisions based strictly upon the size of potential

       paychecks.” Id. (quoting In re E.M.P., 722 N.E.2d 349, 351-52 (Ind. Ct. App.

       2000).


[10]   If a parent’s intentional misconduct directly results in a reduction of his or her

       income, no corresponding decrease in his or her child support obligation should

       follow, because such misconduct results in ‘voluntary underemployment’

       according to the Child Support Guideline 3(A)(3), and the income the parent

       was earning before that misconduct2 should be imputed to that parent. Id.




       2
         Husband also argues the trial court erred when it “imputed income based upon the actions of the parties
       that took place prior to the filing.” (Amended Appellant’s Br. at 10.) He relies on Boone v. Boone, 924 N.E.2d
       649, 653 (Ind. Ct. App. 2010), where “the dispositive question” was whether an Indiana court “has authority
       to reach into an intact marriage” and enter a support order that covers a time before the filing of the
       dissolution decree. (Footnote omitted.) We concluded it does not. Id. at 655.
       Husband broadly characterizes Boone as holding “reaching back into an intact marriage is outside the
       authority of the court,” and asserts the trial court did so when it “reach[ed] back prior to the filing of
       dissolution paperwork for the purposes of imputing income to [Husband].” (Amended Appellant’s Br. at 11.)
       Boone does not stand for the proposition that a trial court never has authority to “reach back into an intact
       marriage” for any reason, and determining income for imputation purposes is one situation where a trial
       court may do so. See, e.g., Macher v. Macher, 746 N.E.2d 120, 122 (Ind. Ct. App. 2001) (income properly
       imputed based on earnings before dissolution).



       Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015               Page 5 of 14
[11]   In Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App. 2001), Siegel petitioned

       for a modification of child support after his license to practice law was

       suspended because he intentionally deceived a bankruptcy court. We noted

       that when a criminal act or its consequences is the primary cause of an obligor-

       parent’s failure to pay child support, abatement of the obligation is not

       warranted. Id. at 632. We acknowledged Siegel had not been convicted of a

       crime, but we “perceive[d] no reason to limit the rationale of [Holsapple v.

       Herron, 649 N.E.2d 140 (Ind. Ct. App. 1995) and Davis v. Vance, 574 N.E.2d

       330, 331 (Ind. Ct. App. 1991)] [both disapproved on other grounds by Clark v. Clark,

       902 N.E.2d 813 (Ind. 2009)] to only those cases where willful misconduct has

       resulted in a criminal conviction.” Id. at 633. We remanded for the trial court

       to impute to Siegel the income he was earning before he was suspended from

       practicing law. Id. at 633


[12]   Husband relies on Miller, where we reached the opposite result. There, we

       determined the trial court should not have imputed income to Miller after he

       was fired for “unauthorized removal” of chemicals from his workplace. 849

       N.E.2d at 759. Miller argued the circumstances leading to his termination did

       not rise to the level of intentional misconduct that would justify a finding of

       voluntary underemployment, and we noted there was no indication criminal

       charges were filed. Miller’s termination was the result of his own misconduct,

       but it did not “rise[] to the level of intentional deceit present in Carmichael.

       Therefore, we find Carmichael to be distinguishable.” Id. at 761.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015   Page 6 of 14
[13]   The case before us is more like Carmichael,3 and the trial court’s imputation of

       income to Husband was not error. As Husband entered a plea of guilty to

       misdemeanor theft, we decline to hold his misconduct was not “intentional.”


                                       Award of Tax Exemptions4

[14]   26 U.S.C. § 152(e) (2000) automatically grants a dependency exemption to a

       custodial parent of a minor child but permits an exception where the custodial

       parent executes a written waiver of the exemption for a particular tax year. A

       trial court under certain circumstances may order the custodial parent to sign a

       waiver of the dependency exemption. Sims v. Sims, 770 N.E.2d 860, 866 (Ind.

       Ct. App. 2002). The Child Support Guidelines were developed without taking

       into consideration the award of the dependency exemption. Id. Courts are

       instead to review each case on an individual basis. Id. (citing Ind. Child

       Support Guideline 6, cmt. (“Tax Exemptions”)).


[15]   Husband, as the noncustodial parent, bears the burden to show the tax

       consequences to each parent of transferring the exemption and how such a

       transfer would benefit the child. Id. (emphasis added). Husband offers no



       3
          We acknowledge the authority Husband offers to the effect “one purpose of potential income is to
       discourage a parent from taking a lower paying job to avoid the payment of significant support,” and another
       is to fairly allocate the support obligation when one parent remarries and, because of the income of the new
       spouse, chooses not to be employed. J.M. v. D.A., 935 N.E.2d 1235, 1240 (Ind. Ct. App. 2010) (quoting Ind.
       Child Supp. G. 3(A), Cmt. 2), reh’g denied. The record does not reflect Husband remarried or was trying to
       avoid paying support, but Husband offers no authority to support the premise income may not be imputed in
       any other situation, and we decline to so hold.
       4
         In the heading for this section of his brief, Husband also asserts the trial court erred by “not ordering [Wife]
       to sign the IRS waiver,” (Amended Appellant’s Br. at 11), but there is no discussion, or even mention, of “the
       IRS waiver” in the body of his argument. We are therefore unable to address that allegation of error.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015                   Page 7 of 14
       argument regarding the tax consequences to either parent of transferring the

       exemption or how transferring the exemption would benefit the child. Nor

       does he direct us to anything in the record indicating he made any such

       showing before the trial court. Therefore, we cannot say the trial court abused

       its discretion in its award of tax exemptions.5


                                         Child’s Health Insurance

[16]   Husband asserts the trial court erred in ordering him to “pay the deductible on

       any health insurance policy and ordering him to purchase same with 6 giving

       him a credit on the child support worksheet.” (Amended Appellant’s Br. at 12)

       (footnote added). Husband has waived that allegation of error on appeal.


[17]   There is no mention in Husband’s Statement of the Case or Statement of the

       Facts of any trial court order that he purchase such a policy and pay the

       deductible. Nor does he, in the Argument section of his brief, direct us to

       anything in the record regarding such an order. We therefore decline to address

       that allegation of error. See, e.g., Johnson v. State, 675 N.E.2d 678, 682 (Ind.

       1996) (declining to address various conflict of interest claims because Johnson



       5
          We remind Husband that when parties do not provide cogent argument and citation to authority, their
       arguments are waived for appellate review. See, Leone v. Keesling, 858 N.E.2d 1009, 1014 (Ind. Ct. App.
       2006), trans. denied; see also Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of
       the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by
       citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in
       accordance with Rule 22.”).
       6
         The substance of Husband’s argument suggests this word should be “without.” (See Amended Appellant’s
       Br. at 12-13: “[t]he court abuses its discretion here in using a high imputed income as the base for the
       calculation, and then in the same order, using the extremely low actual income as the basis for rejecting the credit
       for payment of health insurance premiums.” (emphasis added).)

       Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015                     Page 8 of 14
       did not provide supporting citations to the record). “On review, this Court will

       not search the record to find grounds for reversal. We therefore address only

       those claims properly supported.” Id. (citation omitted).


[18]   Notwithstanding the waiver, we cannot find error. Wife does direct us to an

       order Husband buy a policy and pay the deductible, but it is not apparent the

       order has any present effect. Included in the decree was a provision that if the

       parties’ younger daughter was still in school “when she loses group health

       insurance coverage, [Husband] shall purchase individual health coverage [and] .

       . . shall be responsible for the deductible each year.” (App. at 13.) It is not

       apparent that situation has arisen, and Wife notes that if it does, Husband could

       presumably seek a modification of support.


                                  Additional Expenses for Child

[19]   Husband next asserts the trial court erred by ordering him to “pay 77% of

       additional expenses of the child for items such as school costs, ACT/SAT

       registration fees, college application fees, extracurricular costs, [and] social

       event expenses.” (Amended Appellant’s Br. at 13.) Nowhere in Husband’s

       Statement of the Case, Statement of the Facts, or Argument section on this

       issue in his brief or reply brief does he indicate where any such order might be

       found in the record or what it specifically says. As explained above, Husband

       has therefore waived that allegation of error. See, e.g., Johnson, 675 N.E.2d at

       682 (declining to address claims because Johnson did not provide citation to the

       record).


       Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015   Page 9 of 14
[20]   Notwithstanding the waiver, we note Husband’s assertion the child is home

       schooled and has not yet entered high school. It therefore does not appear the

       order has any present effect. The parties did, however, stipulate in their partial

       marital settlement agreement that the contested issues to be addressed at the

       final hearing would include a determination of who should be responsible for

       “extra-curricular expenses, schooling expenses, ACT/SAT testing costs, college

       application fees, and Prom/Homecoming expenses.” (App. at 22.)


                                            Attorney’s Fees

[21]   Indiana Code Section 31-15-10-1(a) provides a trial court in a dissolution

       proceeding “periodically may order a party to pay 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.” We review for an abuse of discretion a decision on attorney’s fees

       in connection with a dissolution decree. Crider v. Crider, 15 N.E.3d 1042, 1053

       (Ind. Ct. App. 2014), trans. denied. When deciding whether to award attorney’s

       fees, trial courts must consider the relative resources of the parties, their

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

       and earn adequate income, and other factors that bear on the reasonableness of

       the award. Id.


[22]   The legislative purpose behind Indiana Code Section 31-15-10-1 is to ensure

       that a party in a dissolution proceeding is able to retain representation when he

       or she would otherwise be unable to afford an attorney. Id. When one party is


       Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015   Page 10 of 14
       in a superior position to pay fees over the other party, an award of attorney fees

       is proper. Id.


[23]   The trial court awarded Wife attorney’s fees based on “the circumstances in this

       cause of action and the disparity of income.” (App. at 17.) Husband asserts the

       award was error because “[t]he only disparity of income is that imputed by the

       court’s abuse of discretion in its imputation of income to [Husband].”

       (Amended Appellant’s Br. at 16.) As there was no abuse of discretion in the

       imputation of income, we cannot say the award of attorney’s fees was error. 7


                                    Presumption of Equal Distribution


[24]   The division of marital property is within the sound discretion of the trial court,

       and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d

       1005, 1012 (Ind. Ct. App. 2014). An abuse of discretion occurs if the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court, or if the trial court has misinterpreted the law or

       disregards evidence of factors listed in the controlling statute. Id. When we

       review a claim that the trial court improperly divided marital property, we must

       consider only the evidence most favorable to the trial court’s disposition of the




       7
         In his reply brief, Husband notes a party’s ability to pay attorney’s fees “is a factor to consider.”
       (Appellant’s Reply Br. at 5.) He then asserts the trial court “did not make a finding that it considered
       [Husband’s] ability to pay [Wife’s] attorney fees.” (Id.) Grounds for error may be framed only in an
       appellant’s initial brief and if addressed for the first time in the reply brief, they are waived. Monroe Guar. Ins.
       Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005). We accordingly decline to address that allegation of
       error.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015                    Page 11 of 14
       property. Id. Although the facts and reasonable inferences might allow for a

       different conclusion, we will not substitute our judgment for that of the trial

       court. Id.


[25]   The trial court awarded sixty per cent of the assets acquired during the marriage

       to Wife and forty per cent to Husband. An equal division of marital property is

       presumed to be just and reasonable, but this presumption may be rebutted if a

       party presents relevant evidence regarding the following factors: (1) each

       spouse’s contribution to the acquisition of property; (2) acquisition of property

       through gift or inheritance prior to the marriage; (3) the economic

       circumstances of each spouse at the time of disposition; (4) each spouse’s

       dissipation or disposition of property during the marriage; and (5) each spouse’s

       earning ability. Id. (citing Ind. Code § 31-15-7-5).


[26]   When ordering an unequal division, the trial court must consider all of the

       factors set forth in the statute, id., but the court is not required to explicitly

       address each factor. Id. However, on review we must be able to infer from the

       trial court’s findings that all the statutory factors were considered. Id. A party

       who challenges the division of marital property must overcome a strong

       presumption that the court considered and complied with the applicable statute.

       Id. at 1012-13. Thus, we will reverse a property distribution only if there is no

       rational basis for the award. Id. at 1013.


[27]   We can infer from the trial court’s findings that all the statutory factors were

       considered, and the trial court set forth a rational basis for its decision to deviate


       Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015   Page 12 of 14
       from an equal division. The trial court noted the value and division of certain

       major marital assets to which the parties stipulated in their partial marital

       settlement agreement. It addressed Husband’s earning history and noted the

       parties had agreed Wife would stay home and raise the children. It noted

       Husband’s deposit into his own 401(K) account of the vacation and sick pay he

       received after he was fired, and it noted the family’s lost income after he was

       fired and the expenses incurred in the defense of the criminal charges against

       him. It found Husband persuaded Wife to waive her survivorship interest in

       Husband’s pension so he could have a greater monthly benefit.


[28]   The trial court recited the statutes that govern property division, establish the

       presumption of equal division, and explain how it may be rebutted, and it

       explicitly stated it had considered “the statutory factors and the facts of this

       case.” (App. at 16.) Husband has not rebutted the strong presumption that the

       court considered and complied with the applicable statute, and we cannot say

       there was no rational basis for its unequal division of the marital property.


                                                   Conclusion

[29]   The trial court did not err in imputing income to Husband, awarding tax

       exemptions to Wife, directing Husband to purchase health insurance and pay

       Child’s expenses should certain circumstances arise, awarding Wife attorney’s

       fees, or dividing the marital estate unequally. We accordingly affirm the

       decision of the trial court.


[30]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 45A05-1407-DR-355 | May 19, 2015   Page 13 of 14
Barnes, J., and Pyle, J., concur.




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