      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                            FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                 May 06 2019, 10:07 am

      court except for the purpose of establishing                                      CLERK
                                                                                    Indiana Supreme Court
      the defense of res judicata, collateral                                          Court of Appeals
                                                                                         and Tax Court
      estoppel, or the law of the case.


      APPELLANT PRO SE                                        ATTORNEY FOR APPELLEE
      Kenneth R. Sumner                                       Denise F. Hayden
      Avon, Indiana                                           Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Kenneth R. Sumner,                                      May 6, 2019
      Appellant-Respondent,                                   Court of Appeals Case No.
                                                              18A-DR-2070
              v.                                              Appeal from the Hendricks
                                                              Superior Court
      Loree A. Wheeler,                                       The Honorable Rhett M. Stuard,
      Appellee-Petitioner                                     Judge
                                                              Trial Court Cause No.
                                                              32D02-0912-DR-162



      Altice, Judge.


                                               Case Summary


[1]   Kenneth R. Sumner (Father) and Loree Wheeler (Mother) have two children

      together. Following their divorce in 2010, the parties effectively coparented for

      a number of years and shared equal parenting time. In 2018, Mother sought

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019                           Page 1 of 11
      modification of custody, parenting time, and child support. Father represented

      himself at the modification hearing. The trial court ultimately modified

      physical custody, parenting time, and child support as requested by Mother but

      left legal custody to be shared jointly by the parties. On appeal, Father presents

      three issues: (1) whether Father was unconstitutionally precluded from

      presenting his entire case due to time constraints; (2) whether the trial court

      improperly denied a motion to continue; and (3) whether the trial court abused

      its discretion in modifying child support.


[2]   We affirm.


                                          Facts & Procedural History


[3]   Mother and Father married in February 1999 and two children were born of the

      marriage. 1 Mother filed for dissolution of marriage on December 31, 2009.

      Thereafter, the parties entered into an agreement regarding property settlement,

      custody, and support, which was approved by the court and incorporated in the

      decree of dissolution on June 4, 2010 (Decree). Pursuant to the Decree, the

      parties were granted joint legal and physical custody of the children, and Father

      was ordered to pay $120 per month in child support through the Hendricks

      County Clerk’s Office.




      1
          Their daughter was born in February 2003, and their son was born in August 2005.


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019            Page 2 of 11
[4]   Mother and Father coparented well together for a number of years, and they

      each remarried. During Father’s second marriage and thereafter, he

      experienced some instability. Mother and Father worked together and

      mutually agreed to temporary modifications of parenting time and child

      support. After Father’s second divorce, he did not have a home in which to

      exercise overnights. Thus, beginning in February 2017, the children spent all

      overnights with Mother. Father expected that this would go on for a few

      months, but it ended up lasting much longer.


[5]   Accordingly, the parties eventually filed a Temporary Custody Agreement

      (Temporary Agreement) with the court, which they had prepared without the

      benefit of counsel. The Temporary Agreement provided that Mother would

      have full physical and legal custody of the children, with Father exercising

      parenting time with no overnights, until Father obtained a permanent

      residence. The Temporary Agreement was expressly entered into to “give the

      kids stability and mother peace of mind.” Appellee’s Appendix at 18. It provided

      that “once Father has a permanent place of residence, they will revert back to

      shared physical and legal custody of the children and Father will resume

      overnight parenting time. Once Father obtains a residence, the parties will file

      another agreement on custody/parenting time and return to equally shared

      custody.” Id. The trial court approved the Temporary Agreement on

      December 20, 2017.


[6]   Father married his third wife on February 18, 2018, and they moved into a new

      home the following month. Father began to resume overnight parenting time in

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019   Page 3 of 11
      the spring of 2018, but the parties’ commitment to coparent effectively

      deteriorated significantly over the next several months.


[7]   On April 6, 2018, Mother filed her Verified Petition for Modification of the

      Decree as to Parenting Time, Custody, and Child Support. Mother indicated

      that she no longer believed equal shared custody was in the children’s best

      interests. Thus, among other things, Mother sought modification of the Decree

      to provide Father with parenting time pursuant to the Indiana Parenting Time

      Guidelines (the Guidelines). The trial court scheduled a modification hearing

      for July 19, 2018, which was later rescheduled for July 26, 2018.


[8]   On May 7, 2018, Father filed a handwritten Motion for Update of Custody

      Agreement/Return to Equal Custody. Father referenced the provision in the

      Temporary Agreement setting out that once he obtained a permanent residence,

      the parties would file “another agreement on custody/parenting time and return

      to equally shared custody.” Id. In his motion, Father alleged that Mother had

      refused to “update the court accordingly” after he obtained a permanent

      residence in March 2018. Id. at 23. Mother responded to Father’s motion and

      requested the appointment of a guardian ad litem (GAL). The trial court

      appointed Ann Knotek as GAL on May 11, 2018. GAL Knotek filed her

      confidential report with the trial court on July 19, 2018.


[9]   The modification hearing, which was set for three hours, began on the morning

      of July 26, 2018. Mother was represented by counsel, and Father represented

      himself. In her case in chief, Mother called three witnesses – Father (briefly),


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019   Page 4 of 11
       GAL Knotek, and herself – in just over two hours. 2 Father gave a short

       explanation after his testimony and also cross-examined GAL Knotek. He did

       not cross-examine Mother.


[10]   At the beginning of his case in chief, Father noted that he would likely go

       beyond the time originally set for the hearing. The trial court responded, “we

       have at least a half hour left, let’s see where we get and I’ll make a decision at

       that time.” Transcript at 89. Over the next hour, Father presented his own

       testimony in narrative form. Noting the noon hour, the trial court confirmed

       that Father still had much more to cover and inquired of Mother’s counsel if he

       could come back after lunch. Counsel indicated that he would make himself

       available and would also waive cross-examination if necessary. Before breaking

       for lunch, the court instructed the parties to be back at 1:00 p.m. and stated,

       “I’m going to give another hour and that’s it, okay. So however it’s used up is

       how it’s used up and then I’m going to make my decision, okay.” Id. at 122.


[11]   Father continued with his direct testimony after the lunch break, noting that he

       was “trying to consolidate” and go “much faster”. Id. at 123. He spoke for

       about another thirty minutes and then ended his testimony with the following

       summary:


                  I mean there’s way more hours that we don’t have so, uh, I think
                  for now I’ll rest there just for the final comment that, again, I’m
                  in agreement with the GAL’s, uh, suggestions and I’m happy to –



       2
           Mother’s case in chief, including Father’s cross-examination, took place between 8:45 a.m. and 10:53 a.m.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019                       Page 5 of 11
               to do it the way she wants with that program they have, the
               schedules or even also to have a, uh, parenting coordinator, I
               think is what they call it, I’d be fine with that. I won’t fight with
               any of it and I – I think, hopefully, I’ve proved today, I don’t
               know if I’ve proved it on a lot of proof or testimonies but through
               my testimony today, hopefully, you can see that, uh, I’m – I’m a
               good father. I’m an involved father. Uh, and uh, I – I don’t see
               any reason for changing the fifty/fifty arrangement.


       Id. at 136. After a short cross-examination by Mother’s counsel, Father

       provided brief testimony on redirect. He then concluded his testimony: “I’m

       afraid rambling will just get me in all these places I’ve already been so, I don’t

       want to take any more of your time but, uh, I suppose if [Mother’s counsel]

       says other things, I’d … respond at that time.” Id. at 152. At the conclusion of

       his testimony, Father did not call any additional witnesses. The parties then

       presented closing statements, and the trial court took the matter under

       advisement.


[12]   On July 31, 2018, the trial court issued its order modifying custody, parenting

       time, and support. The court gave the parties joint legal custody and ordered

       them to utilize the services of a parenting coordinator to resolve disputes before

       filing motions with the court. The court granted Mother primary physical

       custody of the children and Father parenting time, at a minimum, pursuant to

       the Guidelines. The court also ordered Father to pay weekly child support in

       the amount of $197 per week. Father now appeals. Additional information

       will be provided below as needed.


                                           Discussion & Decision

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019   Page 6 of 11
                                                     1. Time Constraints


[13]   Father, now represented by counsel, suggests that his due process rights 3 were

       violated at the hearing because he was not allowed to present his entire case due

       to time constraints. In this regard, Father asserts that Mother was afforded two-

       thirds of the time to present her case, leaving him only one-third of the time to

       present his case.


[14]   There is no doubt Mother used more time to present her case, but the disparity

       is not as great as that suggested by Father. Moreover, a thorough review of the

       record reveals that the trial court was patient with Father throughout his self-

       representation and did not cut off Father during his testimony. The trial court

       provided more time for Father and encouraged him to manage this time wisely.

       Father concluded his testimony without prompting from the trial court and then

       did not seek to call any additional witnesses 4 or otherwise present more

       evidence. In sum, Father rested his case on his own narrative testimony, which

       took place over about one and one-half hours of the hearing.


[15]   Father chose to represent himself at the hearing. As a pro-se litigant he is held

       to the “same standards as a trained attorney and is afforded no inherent

       leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17

       N.E.3d 259, 266 (Ind. 2014). “One of the risks that a defendant takes when he




       3
           Father generally directs us to Article 1, § 12 of the Indiana Constitution in support of this argument.
       4
           In fact, Father testified that he “didn’t bring witnesses today.” Transcript at 130.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019                           Page 7 of 11
       decides to proceed pro se is that he will not know how to accomplish all of the

       things that an attorney would know how to accomplish.” Smith v. Donahue, 907

       N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied. In this case, Father had

       control over how he managed his time, whom he called as witnesses, and

       whether he would cross-examine witnesses. The trial court did not

       unconstitutionally curtail the presentation of Father’s case.


                                                 2. Continuance


[16]   Father asserts that he made an oral motion to continue the hearing and that the

       trial court abused its discretion by denying the motion. This argument is

       disingenuous because Father never actual moved to continue the hearing. He

       simply indicated, “I may request a continuance”. Transcript at 90. Further,

       Father indicated that the basis of his possible motion would be that the GAL

       did not file her report at least ten days before the hearing as required by Ind.

       Code § 31-17-2-12(c). Contrary to his assertion on appeal, Father did not claim

       that he had insufficient time to prepare to challenge the GAL’s report and

       testimony. In fact, Father testified that he was essentially in agreement with the

       GAL’s recommendations.


[17]   To the extent Father’s statement can be viewed as a motion for a continuance,

       such a request was untimely. The GAL had already testified regarding the

       report, been cross-examined by Father, and been released. The time had come

       and gone to seek a continuance based on the timeliness of the GAL’s report.

       See In re Paternity of M.J.M., 766 N.E.2d 1203, 1207-08 (Ind. Ct. App. 2002)


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019   Page 8 of 11
       (“Mother failed to show that she was free from fault and that her rights were

       prejudiced by the denial” where, in part, she failed to move for a continuance

       before the start of the hearing, despite being aware of the report, and never

       objected to the custody evaluator’s report being admitted into evidence).


                                                      3. Child Support


[18]   Finally, Father challenges the trial court’s modification of child support. He

       claims that the trial court “abused its discretion when it relied upon evidence

       that was too speculative to impute weekly gross income to Father of $1,000”

       per week. Appellant’s Brief at 14. Specifically, he notes that Mother’s proposed

       child support worksheet was unsigned and, therefore, could not properly be the

       basis of the trial court’s support order.


[19]   Decisions regarding child support generally rest within the sound discretion of

       the trial court. Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 725 (Ind. Ct. App.

       2009). We will reverse such a determination only if there has been an abuse of

       discretion or the trial court’s determination is contrary to law. Id.


[20]   Father directs us to cases in which this court has held that the trial court’s

       reliance on an unsigned and unverified support worksheet was error. 5 See

       Vandenburgh, 916 N.E.2d at 728 (“worksheets were improper because they were




       5
        Father also cites and relies heavily on a memorandum decision issued by this court. Ind. Appellate Rule
       65(D) clearly provides that such a decision “shall not be regarded as precedent and shall not be cited to any
       court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.” Father’s
       appellate counsel shall take note of this rule for future cases.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019                             Page 9 of 11
       not signed or verified”); Cobb v. Cobb, 588 N.E.2d 571, 574 (Ind. Ct. App. 1992)

       (basing child support order on unverified and unsigned worksheet was error

       because use of such a worksheet “has no sanction under either the child support

       guidelines or the rules of evidence and trial procedure”).


[21]   Here, although modification of child support was clearly one of the issues to be

       addressed at the hearing, neither Father nor Mother provided the trial court

       with a verified worksheet. Mother, however, testified in some detail regarding

       her (unsigned) proposed worksheet, which was admitted into evidence as

       Exhibit 33. In addition to not objecting to this exhibit or Mother’s admittedly

       speculative testimony regarding Father’s income, 6 Father did not cross-examine

       Mother regarding this evidence or present contrary evidence during his own

       lengthy testimony. Father testified that he is a realtor and part-time minister

       and implied that he is in a better place financially than in the past, but he

       offered no evidence concerning his current income.


[22]   The trial court relied on Mother’s testimony and Exhibit 33, as that was the

       only evidence admitted regarding Father’s income. Additionally, Mother

       offered testimony and Exhibit 22 (the Schedule C from her 2017 federal tax

       return) to support the income figure she used for herself in the proposed




       6
        During her testimony, Mother addressed the $1000 weekly income figure used for Father in her proposed
       worksheet. She acknowledged that she did not know exactly what Father earned but “would guess” that it
       was around $52,000 a year. Transcript at 85.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019                Page 10 of 11
       worksheet. 7 Although trial courts should require verified child support

       worksheets in every case, we conclude that Father’s failure to produce a

       worksheet or any evidence in this regard, his failure to object to Exhibit 33 or

       Mother’s related testimony, and his tacit agreement to proceed without a

       verified worksheet constituted a waiver of his right to appeal the trial court’s

       support order. See Butterfield v. Constantine, 864 N.E.2d 414, 417 (Ind. Ct. App.

       2007) (father waived his right to appeal the trial court’s support order that relied

       exclusively on an exhibit presented by mother without a verified worksheet).


[23]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       7
         Father also argues, without any supporting authority, that the trial court abused its discretion by not
       imputing additional income to Mother “to make up for her apparent voluntary underemployment”.
       Appellant’s Brief at 14. He baldly suggests that the trial court should have inquired “as to why Mother is no
       longer earning or capable of earning weekly gross income of $961.00” as she was at the time of the Decree.
       Id. at 15. This type of inquiry was up to Father, not the trial court, and Father wholly failed to raise the issue
       below. Accordingly, he cannot now be heard to complain.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2070 | May 6, 2019                         Page 11 of 11
