                                                                        Feb 09 2015, 9:53 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark Small                                                 Ryan H. Cassman
Indianapolis, Indiana                                      Cathy M. Brownson
                                                           Coots Henke & Wheeler, P.C.
                                                           Carmel, Indiana


                                                           Michael Ghosh
                                                           Carmel, Indiana




              IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Marriage of:                                   February 9, 2015
Meleeka Clary-Ghosh,                                      Court of Appeals Cause No.
                                                          29A04-1406-DR-275
Appellant-Defendant,
                                                          Appeal from the Hamilton Superior
        v.                                                Court
                                                          Cause No. 29D03-0908-DR-2586
                                                          The Honorable William J. Hughes,
Michael Ghosh,                                            Judge
Appellee-Plaintiff




Barnes, Judge.




Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015                     Page 1 of 16
                                              Case Summary
[1]   Meleeka Clary-Ghosh appeals the trial court’s modification of parenting time

      and child support, the award of attorney fees to her ex-husband, Michael

      Ghosh, as a sanction for contempt, and the denial of her request for the

      appointment of a parenting time coordinator. We affirm.



                                                      Issues
[2]   Meleeka raises four issues, which we restate as:


                       I.       whether the trial court properly modified her
                                parenting time;

                       II.      whether the trial court properly imputed
                                income to her;

                       III.     whether the trial court properly found her
                                incontempt and ordered her to pay a portion of
                                Michael’s attorney fees; and

                       IV.      whether the trial court properly denied her
                                request for a parenting time coordinator.

                                                       Facts
[3]   Meleeka and Michael were married and had a son, M.G. The marriage was

      dissolved and, in 2010, Michael was awarded legal and physical custody of then

      two-year-old M.G. Meleeka was awarded parenting time overnight every

      Wednesday at 6:00 p.m. until Thursday at 10:00 a.m. and alternating

      weekends, beginning at 6:00 p.m. on Friday and continuing until Monday at

      10:00 a.m. Meleeka, a full-time doctoral student, was not ordered to pay any

      child support.

      Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015   Page 2 of 16
[4]   Meleeka and Michael’s relationship was acrimonious and resulted in the filing

      of numerous motions and petitions following the dissolution, including several

      contempt petitions by both parties, a request for the appointment of a parenting

      time coordinator and a motion to modify custody by Meleeka, and motions to

      modify parenting time and child support by Michael.


[5]   After several hearings, the trial court found Michael in contempt for failing to

      forward school information about M.G. to Meleeka. As a sanction, the trial

      court issued a $100 fine, which was suspended, and ordered him to pay $500 of

      Meleeka’s attorney fees. The trial court also found that Meleeka was in

      contempt for her failure to pay school fees in the amount of $7,323.69. As an

      additional sanction for Meleeka’s contempt and as an exercise of its authority to

      apportion attorney fees in a dissolution case, the trial court awarded Michael

      $8,000 in attorney fees.1 The trial court then issued an order denying Meleeka’s

      request for a parenting time coordinator. Finally, the trial court granted

      Michael’s motion to modify child support and his motion to modify parenting

      time. In doing so the trial court imputed annual income of $40,000.00 to

      Meleeka and modified her parenting time to one three-hour mid-week visitation




      1
        The trial court also ordered Meleeka to pay $1,000 of Michael’s attorney fees as a sanction for her refusal
      to provide financial discovery and her failure to comply with Local Rules. Although she mentions the failure
      to provide financial information in her issue statement, she does not develop any argument supported by
      authority on this point. This issue is waived. See Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012)
      (“A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to
      authority and portions of the record.”); Ind. Appellate Rule 46(A)(8)(a).

      Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015                       Page 3 of 16
      and alternating weekend visitation from 5:00 p.m. Friday until 6:00 p.m.

      Sunday. Meleeka now appeals.


                                                    Analysis
[6]   It appears that the trial court entered sua sponte findings. In such a situation,

      the specific factual findings control only the issues that they cover, and a

      general judgment standard applies to issues upon which there are no findings.

      Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013), aff’d on reh’g. “It is not

      necessary that each and every finding be correct, and even if one or more

      findings are clearly erroneous, we may affirm the judgment if it is supported by

      other findings or is otherwise supported by the record.” Id. We may affirm a

      general judgment with sua sponte findings on any legal theory supported by the

      evidence. Id. In reviewing the accuracy of findings, we first consider whether

      the evidence supports them. Id. We then consider whether the findings support

      the judgment. Id. “We will disregard a finding only if it is clearly erroneous,

      which means the record contains no facts to support it either directly or by

      inference.” Id.


[7]   A judgment also is clearly erroneous if it relies on an incorrect legal standard,

      and we will not defer to a trial court’s legal conclusions. Id. at 998-99. We give

      due regard to the trial court’s ability to assess the credibility of witnesses and

      will not reweigh the evidence, and we must consider only the evidence most

      favorable to the judgment along with all reasonable inferences drawn in favor of

      the judgment. Id. at 999. Additionally, we “‘give considerable deference to the


      Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015   Page 4 of 16
       findings of the trial court in family law matters . . . .’” Id. (quoting MacLafferty

       v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)). This deference is a reflection

       that the trial court is in the best position to judge the facts, ascertain family

       dynamics, and judge witness credibility. Id. “‘But 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.’” Id. (quoting

       MacLafferty, 829 N.E.2d at 941).


                                    I. Modification of Parenting Time

[8]    Meleeka argues that the trial court improperly reduced her parenting time. On

       this issue, the trial court found:

               15.      The Court’s orders regarding parenting time are no longer in
               the best interest of the minor child and [sic] evidenced by the ongoing
               litigation occurring between these parties concerning even the most
               simple issues for visitation. Because more structure and definitive
               times and dates are required The Court’s Order of January 4, 2011 is
               hereby modified as follows . . . .
[9]    Appellant’s Amended App. p. 14.


[10]   Indiana has long recognized that the right of parents to visit their children is a

       precious privilege and that a non-custodial parent is generally entitled to

       reasonable visitation rights. Perkinson v. Perkinson, 989 N.E.2d 758, 762 (Ind.

       2013). Indiana Code Section 31-17-4-2 provides:

               The court may modify an order granting or denying parenting time
               rights whenever modification would serve the best interests of the
               child. However, the court shall not restrict a parent’s parenting time
               rights unless the court finds that the parenting time might endanger the


       Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015        Page 5 of 16
               child’s physical health or significantly impair the child’s emotional
               development.
[11]   Meleeka contends that the trial court reduced her parenting time without

       finding that parenting time might endanger M.G.’s physical health or

       significantly impair his emotional development. Meleeka, however, provides

       no authority for the proposition any reduction of parenting time is a restriction

       of parenting time as anticipated in Indiana Code Section 31-17-4-2. Instead she

       cites to a dictionary definition of “restrict” and a 1977 case involving a prior

       version of the statute in which we concluded visitation was improperly

       restricted without the necessary findings when it was reduced from one

       weekend a month, two hours per week, and alternating holidays and birthdays

       to one Sunday a month from 8:00 a.m. to 8:00 p.m. Milligan v. Milligan, 174

       Ind. App. 40, 43, 365 N.E.2d 1244, 1246 (1977).


[12]   Notably, Milligan did not involve the Parenting Time Guidelines, which were

       adopted in 2001, and involved a substantial restriction to a parent’s visitation.

       Here, however, Meleeka had previously been awarded parenting time in excess

       of the specific parenting time provisions in the Parenting Time Guidelines. See

       Ind. Parenting Time G. II(B)(1) (2001).2 In an attempt to minimize conflict




       2
         Although there was some dispute regarding the applicability of the 2013 amendments to the Parenting
       Time Guidelines during the various hearings, the 2013 amendments did not substantively modify this
       Guideline. Both versions call for regular parenting time on alternating weekends from Friday at 6:00 p.m.
       until Sunday at 6:00 p.m., one evening per week, preferably midweek for a period of up to four hours but not
       later than 9:00 p.m., and on all scheduled holidays. Cf. Parenting Time G. II(B)(1) (2001) to Parenting Time
       G. II(D)(1) (2013).



       Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015                      Page 6 of 16
       between the parties, the trial court eliminated overnight visitation on school

       nights. The result is a parenting time award that is more consistent with the

       specific parenting time provisions of the Parenting Time Guidelines. The

       commentary to the Parenting Time Guidelines explains that the Guidelines

       “represent the minimum time a non-custodial parent should spend with a child

       . . . .” Parenting Time G. Preamble cmt. 2.3 Thus, Meleeka’s parenting time

       was not reduced below the minimum time described in the Parenting Time

       Guidelines, and we are not convinced that the reduction amounted to a

       restriction of parenting time for purposes of Indiana Code Section 31-17-4-2.


[13]   Because the parenting time modifications were consistent with the Parenting

       Time Guidelines, we do not believe an endangerment or impairment finding

       was necessary. Instead, the trial court was permitted modify Meleeka’s

       parenting time if it served M.G.’s best interests. The evidence showed that

       Meleeka’s overnight parenting time on school nights was a source of

       disagreement for the parties. Thus, the elimination of these overnights was

       intended to reduce conflict, which was in M.G.’s best interests. Meleeka has

       not established that the trial court abused its discretion in modifying her

       parenting time.4




       3
         Similarly, the 2013 amendment provides that the “Guidelines represent the minimum time a non-custodial
       parent should spend with a child when the parties are unable to reach their own agreement.” Parenting Time
       G. Preamble (B) cmt 2 (2013).


       4
         In her reply brief, Meleeka summarily contends that the trial court failed to find a change of circumstances
       necessary to modify visitation. Because a party may not raise an issue for the first time in a reply brief, this

       Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015                          Page 7 of 16
                                       II. Modification of Child Support

[14]   Meleeka contends that the trial court erred in imputing income to her and

       modifying her child support obligation. A trial court enjoys wide discretion in

       imputing income to ensure that the child support obligor does not evade his or

       her support obligation. Sexton v. Sedlak, 946 N.E.2d 1177, 1188 (Ind. Ct. App.

       2011), trans. denied. “Trial courts may impute income to a parent for purposes

       of calculating child support upon determining that he or she is voluntarily

       unemployed or underemployed.” Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind.

       Ct. App. 2012).


[15]   On this issue, the trial court made extensive findings:

                4.     Mother, is not employed. She has voluntarily left the
                workforce to pursue and [sic] doctoral degree and contends she is a full
                time student. However, the evidence presented established that
                Mother has access to significant income and is able to pay child
                support. The evidence also establishes that Mother is voluntarily
                under employed and engages in behaviors apparently designed to
                display her as indigent while living a very nice lifestyle.


                                                          *****


                6.    Mother has not filed a financial declaration. Mother has
                apparent unfettered access to a business account for an MCM
                Fashions, LLC, (an account she opened as registered agent for the




       issue is waived. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (“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 | Opinion 29A04-1406-DR-275 | February 9, 2015                            Page 8 of 16
        LLC). She claims her only sources of income are student loans,
        personal loans and gifts from her brother and other persons, and
        formerly, contributions from her mother’s benefits. Regular and
        continuing payments made by family member(s) that reduce Mother’s
        costs for rent, utilities, or groceries, may be the basis for imputing
        income. It is clear by a review of the MCM account records that
        Mother uses funds in this account to pay her living and personal
        expenses. The Court’s order of May 12, 2014 found that Mother has
        had access to approximately $75,000.00 over the last two years.


        7.      Additionally, Mother has traveled out-of-town on at least 36
        occasions from October 2011 through June 2014 to the following
        locations: Boston, Miami, Chicago, Orlando, Ohio, Minneapolis,
        Niagara Falls, North Carolina, Houston, Palm Springs, Bahamas,
        Jamaica, New York, San Diego, and Oregon. Some of these trips are
        related to her ongoing doctoral education and others are not.


        8.      Mother also testified that she previously owned three vehicles
        (2 Mercedes and 1 Minivan), but gave them to her brother. However
        even though she “gave” these items to her brother, she maintains
        possession of the vehicles, insures and provides for their maintenance.
        Mother’s claim that these vehicles are not titled to her is credible, but
        the Court finds the transfer of title to be an unsuccessful attempt to
        mask the true ownership of these vehicles from consideration herein.
        This is but one example of the type of financial obfuscation Mother
        has engaged in to attempt to prevent this Court from making an
        informed child support determination.


        9.      The [Indiana Child Support Guidelines] gives the trial court
        wide discretion to impute income to a parent when it is convinced the
        parent’s unemployment or underemployment has been contrived for
        the sole purpose of evading support obligations. Mother’s net worth
        and expenditures are also factors in determining the ability to pay child
        support. Mother has chosen to not seek additional work despite
        having both a Bachelor’s Degree and a Master’s Degree. Based on
        Mother’s work history, education, the amount she receives from
        family and friends, having her mother as a tenant, Mother’s bank
        records showing amounts received by her business entity and other
Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015      Page 9 of 16
               evidence at hearing regarding amounts Mother has spent on her own
               living and personal expenses, Mother’s income for support purposes is
               at least $40,000.00, or $769.00 per week. Mother has previously
               demonstrated the ability to earn this amount of income while residing
               in central Indiana with the educational accomplishments she has
               already obtained.


               10.    Mother has two prior born children in her custody for which
               she receives child support. Mother also has an obligation to provide
               support to those children; however, Mother chose not to present any
               evidence that would permit the Court to make an appropriate
               determination of that obligation under the Indiana Uniform Child
               Support Guidelines.
       Appellant’s Amended App. pp. 11-13.


[16]   Meleeka contends there was no evidence indicating she “was underemployed to

       shirk her responsibilities.” Appellant’s Br. p. 12. It was the role of the trial

       court, not this court, to assess the credibility of witnesses. Stone, 991 N.E.2d at

       999. Our review of the record confirms there was evidence to support the

       inference that Meleeka was attempting to avoid her child support obligation.

       To the extent Meleeka argues otherwise, she is asking us to reweigh the

       evidence, which we cannot do.


[17]   As for Meleeka’s contention that the trial court failed to explain which trips

       were for educational purposes, the trial court acknowledged that some of the

       trips were for educational purposes, and we fail to see how a more specific

       allocation of the trips would have altered the outcome. Likewise, Meleeka’s

       argument that the trial court should not have considered her student loans or

       the child support she received for her other children as a basis for calculating


       Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015     Page 10 of 16
       child support is not a basis for reversal. There simply is no indication that the

       trial court considered Meleeka’s student loans or other child support as a basis

       for imputing income to her. Meleeka has not established that the trial court

       abused its discretion by imputing income to her.


                                            III. Contempt Findings

[18]   Meleeka challenges the trial court’s contempt findings. “A party that is

       willfully disobedient to a court’s order may be held in contempt of court.” Witt

       v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012). “Whether a person is in

       contempt of a court order rests within the trial court’s discretion, and we review

       the trial court’s finding for an abuse of discretion.” In re G.B.H., 945 N.E.2d

       753, 755 (Ind. Ct. App. 2011). An abuse of discretion occurs only when the

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

       circumstances before the trial court. Id. “We do not reweigh the evidence or

       judge the credibility of witnesses, and we will affirm the trial court’s contempt

       finding unless review of the record leaves us with a firm and definite belief that

       a mistake has been made.” Id.


[19]   Meleeka first challenges the trial court’s contempt finding based on her failure

       to pay M.G.’s school fees. On this issue, the trial court found:

                        3.      [Michael’s] Motion for Contempt and Attorney
                        Fees filed January 14, 2013 alleges that [Meleeka] has
                        failed to pay sums of money ordered paid by her for
                        school fees. [Michael] has met his burden on that issue,
                        and on the issue that [Meleeka] has had resources
                        available to her to make some payments but has refused
                        to make any payments. In the time period at issue,
                        [Meleeka] has used resources for at least two leisure trips,
       Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015      Page 11 of 16
                        one to Chicago and one to Florida. Contempt must be
                        used sparingly when sought in a situation such as this for
                        the failure to pay money. At the time the contempt action
                        was instituted, [Meleeka] was under an ongoing
                        obligation to pay 33% of expenses for [M.G.’s] preschool
                        and was paying nothing. Since the motion was originally
                        filed in January 2013, [M.G.] is no long attending
                        preschool. [M.G.] now attends public schools. The sum
                        due under the Court’s prior orders can now be fixed. The
                        Court finds [Meleeka] in contempt of Court for failure to
                        pay school fees and orders judgment entered in favor of
                        [Michael] and against [Meleeka] in the sum of $7,323.69.

       Appellant’s Amended App. pp. 5-6.


[20]   Meleeka contends the evidence does not support the finding that she failed to

       make payments because it is undisputed that Michael received $1,024.97 from

       the bankruptcy trustee in Meleeka’s bankruptcy case for his $18,600.91 claim

       against Meleeka’s estate, which claim included the unpaid school fees. There is

       no evidence in the record that Meleeka made any additional payments toward

       M.G.’s school fees as previously ordered by the trial court. We cannot

       conclude that the trial court’s finding on this issue was contrary to the evidence.


[21]   Likewise, Meleeka’s suggestion that she had previously paid $1,065.00 toward

       school costs is not sufficient to establish that the trial court’s finding was clearly

       erroneous because Michael explained that those payments were “already

       accounted for on the prior order . . . . So since then I haven’t received any

       payments from her.” May 12, 2014 Hr. Tr. p. 142. The trial court did not




       Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015    Page 12 of 16
       abuse its discretion in finding that Meleeka failed to make school payments

       pursuant to its order.5


[22]   Meleeka also argues that the trial court erroneously found her to be litigious

       and awarded Michael attorney fees when he had also been found in contempt.

       At the May 12, 2014 hearing the trial court addressed several outstanding filings

       including multiple contempt petitions. In its order, the trial court found

       Meleeka had not proven her claim that Michael did not comply with the

       holiday parenting time schedule, found Michael in contempt for failing to relay

       school information to Meleeka, found Meleeka in contempt for failing to pay

       school fees, and found that Michael failed to establish one of his contempt

       allegations. Regarding Michael’s contempt, the trial court found his actions

       were “mitigated, to large extent, because he believed he had good defensible

       reasons for not sharing the incident reports with [Meleeka] because of the

       manner she used those reports he did provide to her.” Appellant’s Amended

       App. p. 5. Nevertheless, the trial court imposed a suspended fine and ordered

       Michael to pay $500 of Meleeka’s attorney fees.


[23]   Regarding Meleeka’s claim that Michael had failed to comply with the

       Parenting Time Guidelines for Thanksgiving 2012 and Christmas 2012, the trial




       5
         Michael offered Exhibit 3 to explain his calculation of $7,323.69 in school fees owed by Meleeka pursuant
       to an October 3, 2011 order. This exhibit included a credit for the payment by the bankruptcy trustee. Thus,
       there is no dispute that the trial court’s contempt order took into account the $1,024.97 credit.




       Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015                     Page 13 of 16
court found that Meleeka conclusively established Michael had complied with

the Parenting Time Guidelines and that her petition was filed before the

Christmas 2012 visitation. The trial court characterized this contempt petition

as “frivolous, and an effort to exacerbate the litigious nature of these

proceedings.” Id. at 4-5. On the award of attorney fees to Michael, the trial

court found:

        5.       [Michael] seeks attorney fees in excess of $14,000 and pleads
        with the Court to impose those fees because, “This has got to Stop!”
        The Court finds that [Meleeka] has pursued a litigious path when
        litigation was neither warranted nor necessary . . . . However, the
        imposition of attorney fees should be a sanction of last resort because
        such a sanction can inappropriately chill the constitutional exercise of
        the right of access to the Courts. The Court finds in this instance that
        the imposition of such a sanction is appropriate. On the other hand
        [Michael] has also been found in contempt for failure to abide by the
        Indiana Parenting Time guidelines in providing “notices” from the
        school as required by the guidelines. The Court also notes that
        [Meleeka] has at times made allegations and taken indefensible legal
        positions herein without merit which have unnecessarily increased
        attorney fees for [Michael]. The Court also notes that [Meleeka]
        claims she has no money to pay these expenses, but has for the past
        two years had access to a bank account she opened as a resident agent
        through which over $75,000 per year has flowed. In addition,
        [Meleeka] clearly enjoys a life style far superior to that which could be
        provided by the $4,200 in wages and the less than $9,000 in school
        loans she claims as her income for a year. In short, the Court is not
        persuaded by [Meleeka’s] claims of poverty. Having considered the
        relative merit of each party’s claims the Court finds that as an
        additional sanction for her contempt and as an exercise of this Court’s
        authority to apportion attorney fees in a dissolution case, [Meleeka]
        should pay $8,000 of [Michael’s] fees incurred herein. . . .
Id. at 7.




Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015     Page 14 of 16
[24]   “The trial court has inherent authority to award attorney fees for civil

       contempt.” Winslow v. Fifer, 969 N.E.2d 1087, 1093 (Ind. Ct. App. 2012), trans.

       denied. The fact that the multiple contempt petitions were addressed at a single

       hearing and in a single order does not preclude the trial court from awarding

       Michael attorney fees. The trial court clearly took into account Michael’s

       conduct when it crafted its attorney fee award and in fact, ordered him to pay a

       portion of Meleeka’s attorney fees. We cannot conclude the trial court abused

       its discretion when it ordered Meleeka to pay a portion of Michael’s attorney

       fees.


                                      IV. Parenting Time Coordinator

[25]   Meleeka contends the trial court abused its discretion by denying her request to

       appoint a parenting time coordinator. Decisions about parenting time which

       requires us to give foremost consideration to the best interests of the child and

       are reviewed for an abuse of discretion. Perkinson, 989 N.E.2d at 761.

       Although Meleeka directs our attention to evidence that she and Michael did

       not get along, this fact alone is insufficient to establish that the trial court denied

       abused its discretion in denying her request for the appointment of a parenting

       time coordinator. It was well within the trial court’s discretion to directly

       address the issues raised by the parties in an effort to reduce future litigation

       instead of appointing a parenting time coordinator. Meleeka has not

       established reversible error on this ground.




       Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015   Page 15 of 16
                                                  Conclusion
[26]   Meleeka has not established that the trial court abused its discretion by

       modifying her parenting time, by imputing income to her, by finding her in

       contempt and requiring her to pay a portion of Michael’s attorney fees, or by

       denying her request to appoint a parenting time coordinator. We affirm.


[27]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 29A04-1406-DR-275 | February 9, 2015   Page 16 of 16
