MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                 Apr 08 2015, 10:21 am
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.



ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Bryan L. Ciyou                                            R.P. Fisher
Lori B. Schmeltzer                                        Fisher & Ireland
Ciyou & Dixon, P.C.                                       Wabash, Indiana
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Marriage of:                                  April 8, 2015
                                                         Court of Appeals Cause No.
Regina A. Niccum,                                        85A02-1408-DR-551
                                                         Appeal from the Wabash Circuit
Appellant-Respondent,
                                                         Court
                                                         Cause No. 85C01-1011-DR-661
        v.
                                                         The Honorable Patrick R. Miller,
Matthew B. Niccum,                                       Special Judge

Appellee-Petitioner.




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015    Page 1 of 15
                                               Case Summary
[1]   Regina Niccum appeals the trial court’s denial of her motion to continue, the

      modification of custody, the modification of child support, and the award of

      attorney fees to her ex-husband, Matthew Niccum. We affirm.


                                                       Issues
[2]   Regina raises four issues, which we reorder and restate as:


                        I.       whether the trial court properly denied her
                                 motion to continue;

                        II.      whether the trial court properly rejected her
                                 challenge to the qualifications of the guardian
                                 ad litem (“GAL”);

                        III.     whether the trial court properly modified child
                                 support; and

                        IV.      whether the trial court properly awarded
                                 attorney fees to Matthew.

                                                       Facts1
[3]   Regina and Matthew were married in 2006, and they had a child, H.N, in 2007.

      Their marriage was dissolved in 2011. At that time, the trial court awarded




      1
        Regina’s restatement of facts references several incidents that are irrelevant to the issues she raises on
      appeal. We remind counsel that the statement of facts “shall describe the facts relevant to the issues
      presented for review.” Ind. Appellate R. 46(A)(6). Moreover, “The facts shall be stated in accordance with
      the standard of review appropriate to the judgment or order being appealed.” App. R. 46(A)(6)(b).



      Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015               Page 2 of 15
      them joint legal custody of H.N. and awarded Matthew physical custody. The

      trial court awarded Regina parenting time, “at a minimum, pursuant to the

      Indiana Parenting Time Guidelines . . . .” App. p. 26. The trial court ordered

      Regina to pay $125.00 per week in child support. In calculating Regina’s child

      support obligation, the trial court deviated from the Indiana Child Support

      Guidelines in part because Regina had five older children, four of whom

      resided with her full time and one of whom resided with her part time, and her

      receipt of child support for those children had been irregular. The trial court

      also considered that Matthew had other family financial support and the

      likelihood that Regina would have more parenting time than provided for in the

      Indiana Parenting Time Guidelines.


[4]   The parties had difficulty communicating, and the custody exchanges were

      difficult at times. These issues were exacerbated by Regina’s work schedule,

      which often required her to work weekends.


[5]   On October 18, 2013, Regina petitioned to modify physical custody and

      terminate her child support obligation. Matthew then requested that Stephanie

      Gottschalk, who had been appointed as the GAL in the original dissolution

      proceeding, be reappointed to the case. Regina responded, requesting that

      someone else be appointed to serve as GAL. In November 2013, the trial court

      issued an order reappointing Gottschalk as GAL.


[6]   On April 25, 2014, the matter was set for a one-day hearing on July 10, 2014.

      On May 29, 2014, Matthew petitioned for sole legal and physical custody. On


      Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 3 of 15
      June 27, 2014, Matthew filed an objection to any continuances, explaining it

      had come to his attention that Regina had taken H.N. to one or more

      counselors in Marion, to a psychologist in Fort Wayne, and to a psychiatric

      nurse practitioner, Rachel Miller, who ultimately proscribed Zoloft for H.N.

      Matthew anticipated that Regina was going to move to continue the July

      hearing because Miller was not available to testify. On July 2, 2014, Regina

      filed a motion to continue the July 10, 2014 hearing. The unverified motion

      provided that counsel intended to call Miller as witness, that Miller was not

      available to testify that day, that documentation created by Miller would not be

      available in time for the hearing, and that Miller was a “necessary witness for

      [Regina’s] case.” Id. at 82. On July 7, 2014, the trial court denied Regina’s

      request for a continuance.


[7]   On July 10, 2014, the hearing was conducted. Gottschalk testified, and her

      GAL report was discussed by various witnesses and admitted into evidence

      without objection. At the conclusion of the hearing, Regina’s counsel

      challenged whether Gottschalk was qualified to be a GAL. On July 17, 2014,

      the trial court issued an order denying Regina’s challenge to Gottschalk’s

      qualifications as untimely and unfounded, awarding legal and physical custody

      to Matthew, modifying Regina’s child support obligation from $125.00 to

      $138.00 per week, and awarding Matthew $9,000.00 in attorney fees. Regina

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 4 of 15
                                                  Analysis
[8]   The trial court’s findings were issued sua sponte, and they control only as to the

      issues they cover. Townsend v. Townsend, 20 N.E.3d 877, 879 (Ind. Ct. App.

      2014). We “shall not set aside the findings or judgment unless clearly

      erroneous, and due regard shall be given to the opportunity of the trial court to

      judge the credibility of the witnesses.” Ind. Trial Rule 52(A). We may not

      reweigh the evidence or reassess witness credibility, and we view the evidence

      most favorably to the judgment. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).

      A judgment is clearly erroneous if the evidence does not support the findings,

      the findings do not support the judgment, or the trial court applies the wrong

      legal standard to properly found facts. Fraley v. Minger, 829 N.E.2d 476, 482

      (Ind. 2005). “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.” Best, 941 N.E.2d at 502.


                                               I. Continuance

[9]   Regarding motions to continue a trial, Indiana Trial Rule 53.5 provides in part:

              Upon motion, trial may be postponed or continued in the discretion of
              the court, and shall be allowed upon a showing of good cause
              established by affidavit or other evidence. . . . A motion to postpone
              the trial on account of the absence of evidence can be made only upon
              affidavit, showing the materiality of the evidence expected to be
              obtained, and that due diligence has been used to obtain it; and where
              the evidence may be; and if it is for an absent witness, the affidavit
              must show the name and residence of the witness, if known, and the
              probability of procuring the testimony within a reasonable time, and

      Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 5 of 15
               that his absence has not been procured by the act or connivance of the
               party, nor by others at his request, nor with his knowledge and
               consent, and what facts he believes to be true, and that he is unable to
               prove such facts by any other witness whose testimony can be as
               readily procured.
       “A trial court’s decision to grant or deny a motion to continue a trial date is

       reviewed for an abuse of discretion, and there is a strong presumption the trial

       court properly exercised its discretion.” Gunashekar v. Grose, 915 N.E.2d 953,

       955 (Ind. 2009).


[10]   Regina contends that the inability to call Miller to testify about her diagnosis

       and treatment of H.N. precluded her from presenting her case in its entirety.

       However, Regina’s argument regarding the relevance of Miller’s testimony is

       based in large part on evidence presented at the hearing, not just the contents of

       her motion to continue, which fell far short of establishing good cause for a

       continuance under Trial Rule 53.5. The motion to continue provided only that

       counsel intended to call Miller “from the Wabash County Bowen’s center as

       witness” at the hearing, that Miller was not available to testify that day, that

       documentation created by Miller would not be available in time for the hearing,

       and that Miller was a “necessary witness for [Regina’s] case.” App. 82. The

       motion was not supported by affidavit and did not explain why Miller was

       necessary to Regina’s case. This bare assertion of necessity was not sufficient to

       establish good cause for the continuance.


[11]   Regina claims that the trial court could have ascertained Miller’s testimony

       from the GAL report, which was filed with the trial court before her motion to

       continue and contained a summary of Miller’s meeting with Regina and H.N.
       Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 6 of 15
Regina’s motion to continue, however, did not reference or otherwise

incorporate the GAL report, and she cites no authority for the proposition that

the trial court must sua sponte examine all filings prior to ruling on a motion to

continue. Moreover, the GAL report included a summary of Miller’s meeting

with H.N. and Regina, the basis of her diagnosis, and possible side effects of the

medication she prescribed, and Regina does not explain what additional

testimony Miller would have offered. As such, Regina has not established that

she was prejudiced by the denial of her motion to continue. See F.M. v. N.B.,

979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012) (“No abuse of discretion will be

found when the moving party has not shown that he was prejudiced by the

denial.”).2 Regina has not established that the trial court abused its discretion in

denying her motion to continue.




2
   Regina argues that the trial court should have continued the hearing for a second hearing so Miller could
testify; however, she does not direct us to any portion of the transcript showing that she requested a second
hearing so that Miller could testify. Accordingly, Regina forfeited this issue. Plank v. Cmty. Hosps. of Indiana,
Inc., 981 N.E.2d 49, 54 (Ind. 2013) (explaining that forfeiture is the failure to make the timely assertion of a
right and that appellate courts may sua sponte find an issue foreclosed under a variety of circumstances in
which a party has failed to take the necessary steps to preserve it). Regina also claims that she was entitled to
call Miller for cross-examination pursuant to Indiana Code Section 31-17-2-12(d), which provides, “Any
party to the proceeding may call the investigator and any person whom the investigator has consulted for
cross-examination. A party to the proceeding may not waive the party’s right of cross-examination before the
hearing.” There is no indication, however, that Regina made this argument to the trial court or otherwise
sought to call Miller to cross-examine her. This issue is waived. See id.at 53 (“Declining to review an issue
not properly preserved for review is essentially a ‘cardinal principal of sound judicial administration.’”
(citation omitted)). Finally, Regina’s “due process of law” argument is waived for failing to support it with
cogent reasoning and citation to relevant authority. See Ind. Appellate. Rule. 46(A)(8)(a) (requiring each
contention be supported by cogent reasoning and citation to authority).

Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015                  Page 7 of 15
                                           II. GAL Qualifications

[12]   Regina asserts that Gottschalk was not statutorily qualified to serve as a GAL.

       Regina, however, did not timely challenge Gottschalk’s qualifications. In her

       objection to Matthew’s request to reappoint Gottschalk, Regina stated about

       Gottschalk, “While [Regina] does not question her qualification, [Regina]

       would point out that there are many equally qualified Guardian Ad Litems that

       would be able to serve in this matter.” App. p. 38. Regina called Gottschalk to

       testify at the hearing, and she did not object to Gottschalk’s testimony or the

       GAL report based on her qualifications. It was not until closing remarks that

       Regina’s counsel asserted Gottschalk lacked training that is statutorily required

       in some circumstances. See Ind. Code § 31-9-2-50 (“A guardian ad litem who is

       not an attorney must complete the same court approved training program that

       is required for a court appointed special advocate under section 28 of this

       chapter.”). At that point, Regina’s attorney stated, “I understand her—her

       report’s in and that her testimony is in, but I think the court needs to keep that

       in mind . . . .” Tr. p. 174.


[13]   Our supreme court has observed:

               In general “waiver” connotes an “intentional relinquishment or
               abandonment of a known right.” United States v. Olano, 507 U.S. 725,
               733, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation omitted).
               And appellate review presupposes that a litigant’s arguments have
               been raised and considered in the trial court. “To abandon that
               principle is to encourage the practice of ‘sandbagging’: suggesting or
               permitting, for strategic reasons, that the trial court pursue a certain
               course, and later—if the outcome is unfavorable—claiming that the
               course followed was reversible error.” Freytag v. Comm'r of Internal

       Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 8 of 15
               Revenue, 501 U.S. 868, 895, 111 S. Ct. 2631, 115 L.Ed.2d 764 (1991)
               (Scalia, J., concurring). Declining to review an issue not properly
               preserved for review is essentially a “cardinal principal of sound
               judicial administration.”
[14]   Plank v. Cmty. Hosps. of Indiana, Inc., 981 N.E.2d 49, 53 (Ind. 2013); see also

       Angleton v. State, 714 N.E.2d 156, 159 (Ind. 1999) (“A defendant . . . may not sit

       idly at a sentencing hearing, fail to object to a statutory defect in the proceeding,

       then seek a new sentencing hearing on that basis on appeal. The failure to

       object constitutes waiver.”), cert. denied.


[15]   Gottschalk served as the GAL in the original dissolution proceeding and was

       reappointed without any challenge to her qualifications. The GAL report was

       submitted to the trial court without objection by Regina, and Regina called

       Gottschalk as a witness at the hearing. Only after the evidence was closed did

       Regina challenge the weight of the Gottschalk’s testimony, not its admissibility.

       Regina may not call for reversal on the basis of Gottschalk’s qualifications

       because the issue was not properly raised and considered in the trial at a time

       when the purported error could have be remedied. This issue was waived.


                                              III. Child Support

[16]   Regina also argues that the trial court erroneously modified her child support

       obligation. The modification of child support is controlled by Indiana Code

       Section 31-16-8-1(b), which provides:

               Except as provided in section 2 of this chapter, modification may be
               made only:
               (1) upon a showing of changed circumstances so substantial and
               continuing as to make the terms unreasonable; or

       Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 9 of 15
               (2) upon a showing that:
                        (A) a party has been ordered to pay an amount in child support
                        that differs by more than twenty percent (20%) from the
                        amount that would be ordered by applying the child support
                        guidelines; and
                        (B) the order requested to be modified or revoked was issued at
                        least twelve (12) months before the petition requesting
                        modification was filed.
[17]   Regina argues that, pursuant to this statute, “the trial court can only modify

       child support if there is both a twenty percent (20%) difference from the prior

       determination, and the prior determination was issued more than twelve (12)

       months prior.” Appellant’s Br. p. 38. She contends that the trial court did not

       have authority to modify child support from $125.00 per week to $138.00 per

       week because it is only is a 9% change. In modifying child support, the trial

       court found, “There has been demonstrated a substantial and continuing

       change in circumstances that makes the previously entered child support Order

       entered [sic] unreasonable.” App. p. 17. Thus, the trial court’s decision to

       modify child support was based on Indiana Code Section 31-16-8-1(b)(1), not

       Section 31-16-8-1(b)(2).3




       3
          In her reply brief, Regina argues that Indiana Code Section 31-16-8-1(b)(1) is not applicable, “as the
       calculation actually results in only a 9% change, and this was not a continuing and substantial change in
       circumstances to make the prior award unreasonable.” Regina, however, cites no authority for the
       proposition Indiana Code Section 31-16-8-1(b)(1) cannot be used as a basis for modifying support if there is
       only a 9% change in an award. 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 cogent argument or provide adequate
       citation to authority and portions of the record.”); App. R. 46(A)(8)(a) (requiring each contention to be
       supported by citation to authority).

       Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015             Page 10 of 15
[18]   To the extent Regina argues that there was not substantial change in

       circumstances to warrant the modification of child support because both parents

       are gainfully employed and the trial court did not modify physical custody, we

       are not persuaded. In the dissolution order, the trial court acknowledged that it

       was deviating from the Child Support Guidelines in part because Regina’s

       receipt of support for her five other children was irregular and because the trial

       court anticipated she would have more parenting time with H.N. than provided

       for in the Parenting Time Guidelines. At the time of the July 2014 hearing,

       however, Regina only had three other unemancipated children living with her.

       It is also clear that the trial court no longer anticipated Regina would have

       excess parenting time and that Regina’s income had increased more than

       Matthew’s since the 2011 order. Thus, Regina has not established that this

       finding is clearly erroneous.


[19]   Regina also argues that the trial court erred in calculating her income at

       $89,258.00 because it included proceeds from her 401(k) and overtime and did

       not take into account her other children. In 2013, Regina reported income of

       $89,258.00, but, according to her testimony, without overtime and cashing in

       her 401(k), she would have made $56,000.00, her base salary. Regina testified

       her 2013 income was over $92,000 but she reported $89,258.88 because of

       contributions to her 401(k). She also testified that, based on her February 8,

       2014 paystub, she was on track to earn almost $93,500.00 in 2014.


[20]   Assuming that Regina is correct that her 2013 income included proceeds from

       her 401(k), she does not direct us to evidence showing the amount of the 401(k).

       Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 11 of 15
       Regarding overtime, Regina testified that she worked overtime because “if I’m

       not around the kids, I might as well be at work.” Tr. p. 55. Without more,

       Regina has not established that the trial court abused its discretion by

       calculating her income at $89,258.00. See Schwartz v. Heeter, 994 N.E.2d 1102,

       1105 (Ind. 2013) (“Accounting for irregular income under the Guidelines is a

       fact-sensitive inquiry within a trial court’s discretion.”).


[21]   As far as the support of Regina’s five other children, the trial court found that

       three other unemancipated children were living with her, but there was no

       testimony or evidence presented regarding her legal duty to support these

       children. Regina testified, “raising that many kids without any child support

       from their father is sometimes a bit of a challenge.” Tr. p. 42. However, she

       went on to testify that she is supposed to receive $668.00 a month for them and

       that he pays “[w]henever he gets locked up.” Id. at 43. She later testified that,

       at the time of the hearing, they were with their father for summer visitation.

       The trial court was free to weigh what little evidence there was regarding the

       support of Regina’s other children, and she has not established that the trial

       court abused its discretion in calculating child support.4




       4
          The chronological case summary indicates that, after the trial court issued its order, Regina’s attorney sent
       a letter to the trial court, which was forwarded to Matthew’s attorney. The trial court apparently reviewed
       the attachments to the letter and found them insufficient to determine Regina’s “financial amount for her
       Court Order or Legal Duty for her Prior Born Children.” App. p. 13. The parties do not discuss this filing,
       and it is not included in the appendix.

       Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015                 Page 12 of 15
                                              IV. Attorney Fees

[22]   Regina argues that the trial court erroneously ordered her to pay $9,000.00 in

       attorney fees to Matthew. On this issue, the trial court found:

               1. . . . Father has incurred reasonable attorney fees in this matter in
               the sum of $13,300.00, and has requested an award of the same.
               2. In ruling on this request, the Court has considered the resources
               available to both parties, the economic circumstances of the parties,
               the abilities of the parties to engage in gainful employment and earn
               adequate income, whether a party was required to defend an
               unmeritorious claim, the results achieved by the parties, the
               complexity of the issues, and other such factors as the Court may.
               (Ind. Code § 34-52-1-1; Ind Code § 31-15-10-1; Ind Code § 31-16-11-1;
               Ind. Code § 31-17-7-1; Ind. Code 31-17-4-3)
               3. Having considered such factors, Mother is ordered to pay an award
               and judgment of $9,000.00 of reasonable attorney fees to Father,
               Matthew Niccum which award is in the nature of, and related to child
               support. The fees shall be paid in full by December 31, 2014. . . .
       App. p. 18.


[23]   Regarding child support and the modification of custody, a trial court

       periodically may order a party to pay a reasonable amount for the cost to the

       other party of maintaining or defending any proceeding. See I.C. §§ 31-16-11-1,

       31-17-7-1. A determination of attorney fees is within the sound discretion of

       the trial court and will be reversed only upon a showing of a clear abuse of that

       discretion. Whited v. Whited, 859 N.E.2d 657, 665 (Ind. 2007) (concerning

       modification of custody); Barger v. Pate, 831 N.E.2d 758, 765 (Ind. Ct. App.

       2005) (applying abuse of discretion standard to attorney fee award in a custody

       modification proceeding). “In determining whether to award attorney fees, the

       trial court must consider the parties’ resources, their economic condition, their

       Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 13 of 15
       ability to engage in gainful employment, and other factors that bear on the

       award’s reasonableness.” Whited, 859 N.E.2d at 765. The trial court is not

       required to cite the reasons for its determination. Id.


[24]   Regina argues that there is no evidence to support the trial court’s finding that

       Matthew incurred $13,300.00 in attorney fees. We disagree. Matthew offered

       evidence that his attorney had spent fifty-three hours on the case prior to the

       hearing at a rate of $225.00 to $230.00 an hour. This is consistent with

       Matthew’s testimony that before the hearing he met with his attorney and, at

       that time, his bill was around $12,000.00. The trial court was aware how long

       the hearing was and could infer that Matthew incurred an additional $1,300.00

       in attorney fees related to the hearing. Further, another attorney testified at the

       hearing that a reasonable attorney fee for the case would be between $10,000.00

       and $15,000.00. The evidence supports this finding.


[25]   Regina also argues that the trial court abused its discretion in ordering her to

       pay the attorney fee award in five-and-a-half months considering her income,

       her child support obligation, and her support of her other children. However,

       the trial court was in the best position to consider the various factors, including

       the parties’ ability to pay and the merits of the parties’ claims, and we will not

       second guess that determination. See Whited, 844 N.E. at 665 (summarily

       affirming the trial court’s decision to deny a request for attorney fees because

       “the trial court was in the best position to make this determination and consider

       the above factors”).



       Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 14 of 15
                                                 Conclusion
[26]   Regina has not established that the trial court abused its discretion in denying

       her motion to continue, in modifying child support, or in awarding Matthew

       $9,000.00 in attorney fees. Regina waived any challenge to the GAL’s

       qualifications by not timely raising the issue. We affirm.


[27]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015   Page 15 of 15
