G:\28243 Ind Law Rev 45-4\45masthead.wpd


RECENT DEVELOPMENTS IN FAMILY
AND MATRIMONIAL LAW

KATHLEEN E. RUDIS*
MICHAEL R. KOHLHAAS**

JAMES A. REED***
KEVIN P. MCGOFF****

INTRODUCTION

During the survey period, October 1, 2010 through September 30, 2011,
numerous Indiana appellate court decisions were published involving family and
matrimonial law.  These decisions involve topics such as dissolution of marriage,
child custody, support, relocation, paternity, and adoption.  This Article reviews
and examines developments in Indiana’s family and matrimonial case law during
the survey period.

I.  DISSOLUTION OF MARRIAGE

The following section reviews noteworthy cases involving jurisdictional
issues, marital property issues, property valuation issues, distribution issues,
maintenance issues, and other matters related to the dissolution of marriage.

A.  Jurisdictional Issues
Jurisdictional issues frequently arise in family law.  In one noteworthy case,

Cotton v. Cotton,1 the Indiana Court of Appeals considered whether the summons

* Associate, Bingham Greenebaum Doll LLP; professional profile available at
http://www.bgdlegal.com/professionals/xprAttorneyDetails4.aspx?xpST=AttorneyDetail&attorn
ey=367.  Since graduating from law school in 2009, Katie has practiced with the firm’s litigation
and private client departments, where she represents clients on an array of matters from family and
matrimonial law to health care and business litigation.

** Partner, Bingham Greenebaum Doll LLP; professional profile available at
http://www.bgdlegal.com/professionals/xprAttorneyDetails4.aspx?xpST=AttorneyDetail&attorn
ey=361. Mike concentrates his practice in a variety of personal representations, including
matrimonial law and wealth transfer planning. His clients include executives, professional athletes,
civic leaders, as well as other high-profile and high net worth individuals.

*** Partner, Bingham Greenebaum Doll LLP; professional profile available at
http://www.bgdlegal.com/professionals/xprAttorneyDetails4.aspx?xpST=AttorneyDetail&attorn
ey=371.  Jim is the founder of the matrimonial and family law group at Bingham Greenebaum Doll
and leads the firm’s private client department.  He is a Fellow of the American Academy of
Matrimonial Lawyers.

**** Partner, Bingham Greenebaum Doll LLP; professional profile available at
http://www.bgdlegal.com/professionals/xprAttorneyDetails4.aspx?xpST=AttorneyDetail&attorn
ey=375.  Kevin practices with the firm’s litigation and private client departments, where he
represents clients in matters from family and matrimonial law to legal ethics.

1. 942 N.E.2d 161 (Ind. Ct. App. 2011).



1184 INDIANA LAW REVIEW [Vol. 45:1183

served with a petition for dissolution of marriage must include a clear statement
of the risk of default for failure to appear or otherwise respond.  

In Cotton, the husband and wife married in 2002.2  In March 2009, the
husband filed a petition for dissolution of marriage.  The wife was served with a
summons and copy of the petition, but she failed to appear and did not respond
to the petition.3  At the final hearing in September 2009, the wife did not appear
and she received no notice of the final hearing.4  The trial court defaulted the wife
and entered a final dissolution decree awarding joint legal and physical custody
of the parties’ son.5  The wife appealed this ruling. 

On appeal, the wife contended that the decree was void because it was
entered without personal jurisdiction over her, due to insufficiency of process;
specifically, the summons used by the husband did not include language
articulating a risk of default for doing nothing.6  In reviewing the summons, the
court of appeals concluded:  “We hold that due process requires that, at a
minimum, a respondent in a dissolution proceeding be notified of the risk of
default for failure to appear or otherwise respond.”7  The court of appeals added,
“[T]he command of Trial Rule 4(C)(5), grounded in due process, is that the
respondent in a dissolution proceeding must be given notice in a ‘clear statement’
of the risk of default for failure to appear or other respond.”8  Concluding that the
subject summons did not comply with Trial Rule 4(C)(5), or the Due Process
Clause, the dissolution decree was reversed and remanded for further
proceedings.9

B.  Property Distribution
Distributing marital property raises issues involving how to define the marital

estate, how to value marital property, and how to distribute marital property.
1.  Defining the Marital Estate.—Generally, assets are subject to division

when there is an immediately existing right of present enjoyment.  In Ford v.
Ford,10 the Indiana Court of Appeals reviewed a trial court decision considering
whether the husband’s employer-funded health benefit account constituted a
marital asset subject to division.  The court also considered the value of the
account.  

During dissolution proceedings between the parties in Ford, the parties
reached a mediated settlement, in which they agreed to all issues except whether
the husband’s employer-funded health benefit account, valued at $28,694.31

2. Id. at 163.
3. Id.
4. Id. at 163-64.
5. Id. at 163.
6. Id. at 163-65.
7. Id. at 165.
8. Id.
9. Id. at 166.

10. 953 N.E.2d 1137 (Ind. Ct. App. 2011).



2012] FAMILY AND MATRIMONIAL LAW 1185

constituted a divisible marital asset.11  The trial court found that the account was
a divisible marital asset.12  The trial court also found that because the parties had
agreed on a value of the account, the trial court should accept that value.13 

On review, the Indiana Court of Appeals found that the husband had an
immediately-existing right of present enjoyment of the account, and therefore was
vested in possession with regard thererto.14  Thus, the court found that the trial
court properly concluded that the account was a divisible marital asset.15  The
court did consider the contingencies that might impact the account in the future,
but the court determined that the contingencies did not change the fact that the
husband had an immediately-existing right of present enjoyment of the account.16

The court’s review of the valuation of the asset revealed that the parties
agreed only that “the sum of $28,694.31 was the amount of employer
contributions in the [account] as of March 2010.”17  The court ruled that this was
not the same as agreeing that the value of the account as a marital asset was
$28,694.31.18  Moreover, the court found that due to the various contingencies
that might affect the husband’s future enjoyment of the account, “the [a]ccount
might well be valued at substantially less than $28,694.31.”19 

The court affirmed the trial court’s conclusion that the account was a marital
asset subject to division, but reversed and remanded the trial court’s judgment
regarding valuation of the account.20 

2.  Property Valuation Issues.—Several cases during the survey period
addressed the issue of valuing property includable in the marital estate. 
Specifically, the court considered valuation when the value of an asset has
changed significantly during the pendency of dissolution.  In McGrath v.
McGrath,21 the Indiana Court of Appeals considered the selection of a valuation
date for a marital asset, where the trial court has a choice between using a date of
filing value and a date closer to the final hearing, and the value of the asset
changed significantly during the pendency due solely to market fluctuation.

In McGrath, the wife filed a petition for dissolution of marriage in 2005.22 
Several months later, the real estate property that the couple owned in Michigan
City was appraised for $389,000.23  In late 2009, as the parties’ final hearing

11. Id. at 1141.
12. Id.
13. Id.
14. Id. at 1142-43.
15. Id.
16. Id. at 1143.
17. Id. at 1144 (citation omitted).
18. Id.
19. Id.
20. Id.
21. 948 N.E.2d 1185 (Ind. Ct. App. 2011).
22. Id. at 1185.
23. Id.



1186 INDIANA LAW REVIEW [Vol. 45:1183

approached, the property was appraised again, this time for $229,000.24 
In April 2010, the parties’ final hearing was held.25  Both the 2005 and 2009

appraisals for the Michigan City property were admitted into evidence.26 
Following the final hearing, the trial court awarded the Michigan City property
to the husband at its 2005 valuation, which the husband argued reduced his share
of the marital property to less than fifty percent.27

The court of appeals noted the general axioms that the trial court has broad
discretion in determining the date on which marital assets should be valued.28 
Further, “for purposes of choosing a date upon which to value marital assets, the
trial court may select any date of filing between the date of filing the petition for
dissolution and the date of the final hearing.”29  Nevertheless, the court of appeals
concluded that “the court abused its discretion in failing to consider the
substantial change in value of the [Michigan City real estate] as expressed in the
2009 appraisal report.”30  The trial court’s decree was reversed and remanded
with instructions to take into account the decline in the value of the Michigan
City real estate.31 

Additionally, during the survey period, the Indiana Court of Appeals issued
case law regarding supplemental property settlement payments.  The court
determined that when more than one property was at issue, the properties must
be viewed collectively for purposes of equalization payments.32

3.  Distribution Issues.—Cases regarding distribution issues can arise when
a party to dissolution believes their spouse dissipated assets, when events
subsequent to dissolution complicate future retirement distribution, or when a
property settlement agreement requires clarification.  The court has determined
that awarding one party more than 100% of the marital estate is an abuse of
discretion, absent a finding of dissipation.  In Smith v. Smith,33 the Indiana Court
of Appeals considered whether the trial court abused its discretion in awarding
one party more than 100% of the marital estate, absent a finding of dissipation
that supported the award. 

24. Id.
25. Id.
26. Id. at 1188.
27. Id. at 1185-87.
28. Id. at 1187 (citing Wilson v. Wilson, 732 N.E.2d 841, 845 (Ind. Ct. App. 2000)).
29. Id. (citing Wilson, 732 N.E.2d at 845).
30. Id. at 1189.
31. Id.  Judge Friedlander concurred with a separate opinion, stressing the inconsistencies

present in the trial court’s decree.  Id. (Friedlander, J., concurring).
32. See Connolly v. Connolly, 952 N.E.2d 203, 207-08 (Ind. Ct. App. 2011) (“[I]n the event

of a post-dissolution increase in value of husband’s ownership interest in [the property], [w]ife
would be entitled to an ‘equalization payment’ based upon an increase in the value of that interest.
. . . it is not disputed that [h]usband’s ownership interest in [the property] decreased.  Accordingly,
wife is not entitled to an equalization payment based on [h]usband’s ownership interest (alteration
omitted) (citation omitted)).

33. 938 N.E.2d 857 (Ind. Ct. App. 2010).



2012] FAMILY AND MATRIMONIAL LAW 1187

In Smith, the only contested issue for the divorce proceeding was the division
of marital assets.34  The parties had assets of about $46,000 and debts of about
$39,000, making the value of the marital estate about $7,000.35  The husband
earned, or was capable of earning $1,310 per week and the wife earned, or was
capable of earning $686.  The trial court found that the wife rebutted the
presumption of an equal division of the marital estate due to the earning abilities
of the parties.36  The wife’s net award by the trial court was around $11,500 and
the husband’s was around (-$4,500).37  The husband subsequently appealed.38 

On appeal, the husband argued that the trial court abused its discretion by
awarding the wife more than one-hundred percent of the net marital estate.39  The
court of appeals agreed with the husband, noting that “[a]bsent a finding of
dissipation of assets, a property division cannot exceed the value of the marital
assets without being considered an improper form of maintenance and an abuse
of discretion.”40  The court reversed and remanded to the trial court for a
reasonable division of the marital estate not to exceed the net value of the marital
estate.41 

Although this opinion cites the 1999 Pitman42 case, its dicta reveals an
important distinction between the two cases.  Pitman stands for the proposition
that, even when dissipation occurs, the divorce court may not divide the marital
estate as though the dissipated asset remains fictionally part of the marital estate.43 
Further, Pitman notes that, where the remaining, non-dissipated marital property
is insufficient to make the non-dissipating party whole, even after receiving one-
hundred percent of the remaining marital estate, the aggrieved party’s only
remedy is to seek a rescission of the transaction that resulted in the dissipation.44

By contrast, the Smith court implies that, with a finding of dissipation, an
award of more than one-hundred percent of the marital estate to the non-
dissipating party may be proper.45  In that regard, Smith appears to reverse a
portion of the Pitman holding.  In Pitman, the court of appeals found the trial
court erred in awarding a money judgment to the wife to compensate her for stock
that the husband dissipated through a transfer to family members as part of
divorce planning.46  Under Smith, that finding of dissipation would seem to
support the overall division of the marital estate undertaken by the Pitman trial

34. Id. at 859.
35. Id.
36. Id.
37. Id.
38. Id. at 860.
39. Id.
40. Id. at 861.
41. Id.
42. Pitman v. Pitman, 721 N.E.2d 260 (Ind. Ct. App. 1999).
43. See id. at 267.
44. Id. 
45. See Smith, 938 N.E.2d at 861.
46. Pitman, 721 N.E.2d at 267.



1188 INDIANA LAW REVIEW [Vol. 45:1183

court. 
In another case during the survey term, Bandini v. Bandini,47 the court also

addressed the restructuring of benefits so as to decrease divisible retirement
benefits.  In Bandini, the Indiana Court of Appeals reviewed a trial court decision
considering whether the husband violated the dissolution decree when, after the
divorce, he restructured his military benefits so as to reduce his monthly
retirement benefit (that was being shared with the wife) in an effort to acquire an
increase in new disability benefits (which the husband did not have to share with
the wife).

In this case, the husband and wife married in 1971.48  The husband was in the
Army and Army Reserve until 1995.49  The parties divorced in 2005.50  The
property settlement agreement that was incorporated into their decree provided
that the “[w]ife shall have . . . (50%) of [h]usband’s USAR military
retirement/pension plan by QDRO, including survivor benefits.”51  The husband
turned sixty in 2008 and began receiving retirement benefits.52  The government
divided each monthly payment so that the husband and wife each received
approximately $925.53  Also, in 2008, the husband applied for Combat-Related
Special Compensation (CRSC) based upon hearing problems that the husband
experienced.54  Receipt of CRSC payments requires the recipient to make waivers
of a corresponding portion of retirement pay.55  However, the net advantage to the
recipient is that, unlike retirement pay, the CRSC payments are not taxable
income.56 

In July 2008, the husband was approved for CRSC of $1006 per month,
meaning that the retirement payment that he and wife each received dropped from
$925 each, to $548 each.57  The wife demanded that the husband begin paying her
the shortfall between her prior payment and the new payment.58  When the
husband refused, the wife filed a contempt petition.59  After a hearing, the trial
court agreed with the wife and ordered the husband to make up for past missed
payments, as well as prospectively pay the wife one-half of the his CRSC

47. 935 N.E.2d 253 (Ind. Ct. App. 2010). 
48. Id. at 255.
49. Id.
50. Id. at 255-56.
51. Id. at 256 (citation omitted).
52. Id.
53. Id.
54. Id.
55. Def. Fin. & Accounting Serv., Combat Related Special Compensation (CRSC) FAQs,

MILITARY.COM, http://www.military.com/benefits/military-pay/special-pay/combat-related-special-
compensation-crsc-faqs.html (last visited June 3, 2012).

56. Id.
57. Bandini, 935 N.E.2d at 256.
58. Id. at 256-57.
59. Id. at 257.



2012] FAMILY AND MATRIMONIAL LAW 1189

payments.60  The husband appealed.61 
On appeal, the court of appeals affirmed the trial court’s determination.62  The

court reasoned that the decree had referred generically to an equal division of the
husband’s military retirement benefit and, to the extent that the husband
unilaterally converted a portion of that retirement benefit to CRSC benefits, the
wife was entitled to be made whole.63 

In cases where a transfer contemplated under the decree could not be
implemented, the court has considered reformation of the decree.  For example,
in Evans v. Evans,64 the Indiana Court of Appeals considered whether the trial
court acted within its discretion by reforming a decree, pursuant to Trial Rule
60(B), to provide an alternate transfer of property to the wife after it was
determined that the transfer of retirement funds by QDRO originally
contemplated under the decree could not legally be implemented.65

In Evans, the trial court issued its decree and property division orders on
March 7, 2007.66  The decree found a net marital estate of $743,860, and
concluded that each party should receive half, or $371,930.  The wife was
allocated property worth $263,255.67  The remaining $108,675 due to the wife to
reach her fifty percent share was to be accomplished by a QDRO that allocated
the wife an interest in the husband’s UAW pension that would pay her the subject
shortfall over ten years, plus five percent interest.68 

In the following months, counsel for the parties twice failed to accomplish the
acceptance by the plan administrator of a QDRO that would perfect the intended
allocation.69  Before the issue could be resolved, the wife died.70  The wife’s
estate filed a motion in the divorce court and successfully replaced the wife as an
interested party. 

The wife’s estate also filed a motion to compel payment of the outstanding
$108,675, which the trial court construed as a Trial Rule 60(B) motion.71  After
a hearing, the trial court concluded that transfer of the $108,675 via QDRO was
a legal impossibility, and instead issued an alternative order for the payment of
$108,675 against the husband and in favor of the wife’s estate.72  The husband
appealed. 

The husband asserted on appeal that the trial court abused its discretion by

60. Id. at 257-58.
61. Id. at 258.
62. Id. at 264.
63. Id.
64. 946 N.E.2d 1200 (Ind. Ct. App. 2011).
65. See id. at 1202-03.
66. Id. at 1202.
67. Id.
68. Id.
69. Id. at 1202-03.
70. Id. at 1203.
71. Id.
72. Id.



1190 INDIANA LAW REVIEW [Vol. 45:1183

correcting the decree pursuant to Trial Rule 60(B)73 and, further, the motion filed
by the wife’s estate was not timely.74  The court of appeals concluded that the
estate’s motion properly fell under the catch-all provision of Trial Rule 60(B)(8)
to equitably implement relief from a judgment.75  The court further held that,
while the motion could have been filed earlier, it was nevertheless filed within a
reasonable time under the circumstances.76  Thus, the trial court’s order was
affirmed.77 

The court further addressed settlement issues in other case law.  Notably, the
court of appeals determined that a trial court may exercise continuing jurisdiction
to reexamine a property settlement where the nature of which is to seek
clarification of a prior order.78  In other significant case law, the court determined
that a drafted property settlement agreement, that remains unsigned by one of the
parties and is not yet court-approved, is not enforceable upon the death of one of
the divorce litigants.79 

4.  Maintenance Issues.—During the survey period, the Indiana appellate
courts have also addressed various maintenance issues.  Evidence of changes in
health and financial circumstance justify termination of incapacity-based spousal
maintenance.  The burden for modifying maintenance awards rests with the party
seeking modification, and decision of whether to grant such modification is
within the sound discretion of the trial court.80  

However, an incapacity-based maintenance award is proper when the spouse
received disability prior to the marriage and the incapacity was undisputed.  In
Clokey v. Clokey,81 the Indiana Court of Appeals considered whether the trial
court abused its discretion in making a $2,000 per month incapacity-based
maintenance award in favor of the wife, where she had been receiving social
security disability payments prior to the marriage and the husband did not dispute
her incapacity.82 

The parties married in 2004.83  The husband was a retired professor with

73. Id.
74. Id. at 1204.
75. Id. at 1205-06.
76. Id. at 1206-07.
77. Id. at 1208.  Judge Riley dissented in part. Id. (Riley, J., dissenting in part).
78. See Shepherd v. Tackett, 954 N.E.2d 477, 480-82 (Ind. Ct. App. 2011) (clarifying a

settlement agreement consistent with the parties’ intent is different from modifying the agreement,
and under the circumstances, it was appropriate for the trial court to provide an alternate means of
securing the husband’s existing obligation after learning the original QDRO could not be enforced).

79. Murdock v. Estate of Murdock, 935 N.E.2d 270, 274 (Ind. Ct. App. 2010) (reversing and
remanding to probate court to determine whether the husband’s filing for divorce constituted
forfeiture of his right to inherit from the wife’s estate).

80. See Pala v. Loubser, 943 N.E.2d 400, 409 (Ind. Ct. App.) (affirming trial court’s
termination of spousal maintenance), trans. denied, 950 N.E.2d 1212 (Ind. 2011).

81. 956 N.E.2d 714, aff’d on reh’g, 957 N.E.2d 1288 (Ind. Ct. App. 2011).
82. Id. at 715-16.
83. Id. at 716.



2012] FAMILY AND MATRIMONIAL LAW 1191

assets exceeding $600,000.84  The wife was not working at the time, but was
receiving social security disability of $741 per month.  During the marriage, the
parties’ assets apparently depleted quite rapidly, and they filed for bankruptcy in
2009.85  In early 2010, the husband filed a petition for dissolution of marriage.
After the final hearing, the trial court’s decree included both an unequal division
of the remaining marital estate to the wife, and an incapacity-based maintenance
award of $2,000 per month in the wife’s favor.86  The husband appealed, asserting
the trial court failed to give consideration to his age, ability to pay, and other
circumstances.87  The husband further asserted that the trial court based the
maintenance award, in part, on a finding that the husband had dissipated the
marital estate.88 

On review, the court of appeals concluded that the trial court’s finding of
dissipation by the husband related to its unequal division of the marital estate in
the wife’s favor, not its decision to order maintenance.89  As such, the court of
appeals concluded that the trial court did not abuse its discretion in issuing its
maintenance award.90 

C.  Child Custody, Parenting Time and Third Party Visitation
Custody, parenting time, and visitation disputes are a prominent area of

Indiana family law.  The following is a brief review of several notable cases from
the survey period.

1.  Modification of Custody.—In Best v. Best,91 the Indiana Supreme Court
reviewed a modification of custody decision.  There, the mother and father
divorced in 2004.92  In 2005, the trial court approved the parties’ agreement on
child custody, parenting time, and support as to their two children, a daughter and
a son.  Significant litigation over parenting issues followed.  In 2007, the trial
court approved an agreed entry providing that the daughter would be enrolled in
public schools.93  The father subsequently filed a contempt petition against the
mother, reciting that she had failed to enroll the daughter in public school.94  The
mother responded with a petition for modification.  The trial court subsequently
denied the mother’s modification request, found the mother in contempt, and
ordered the mother to enroll the daughter in public school.95 

84. Id. 
85. Id. at 716 n.2.
86. Id. at 717.
87. Id. at 718.
88. Id. at 719.
89. Id.
90. Id.
91. 941 N.E.2d 499 (Ind. 2011).
92. Id. at 501.
93. Id.
94. Id.
95. Id.



1192 INDIANA LAW REVIEW [Vol. 45:1183

In 2008, the father, citing the mother’s additional non-compliance, filed a
petition to modify custody.96  The mother filed her own petition to modify
custody in response.  The trial court granted the father’s petition to modify,
giving him sole legal custody and primary physical custody of both the son and
daughter.97  The mother appealed. 

In considering the mother’s appeal, the court of appeals affirmed the trial
court’s order except as to two points:  First, the court of appeals reversed the trial
court’s decision to modify physical custody of the daughter; second, the court of
appeals reversed the trial court’s finding of contempt.98 

On transfer, the Indiana Supreme Court summarily affirmed the court of
appeals’ decision, except for its reversal of the trial court’s modification of the
physical custody of the daughter.99  The mother had asserted that the trial court’s
modification lacked two supporting findings:  1) that a change in circumstances
in any of the factors set forth Indiana Code section 31-17-2-21 had occurred, and
2) that the modification of physical custody was in the daughter’s best interest.100 
However, the supreme court noted that the trial court’s findings listed each of the
statutory factors and specifically discussed evidence relevant to each factor.101 
The court also viewed the mother’s appeal of the physical custody order as an
impermissible request to reweigh evidence.102  The court stated, “We find no error
in the trial court’s decision to place [the daughter’s] primary physical custody
with the father, subject to its specification of parenting time.”103  The decision of
the trial court was affirmed, except for its finding of contempt as to the mother,
which the court reversed through summary adoption of the court of appeals’
determination of the contempt issue.104 

Additionally, in Werner v. Werner,105 the Indiana Court of Appeals
considered whether the trial court’s findings were sufficient to support its
judgment under the “best interests of the child” standard, when the mother had
waived argument as to the standard used when determining whether to modify
custody.106  In this case, the parties were married in 1999 and there were two
children born of the marriage.107  The mother filed a petition for dissolution in
2008.108  

The parties agreed on all aspects of the dissolution other than physical

96. Id.
97. Id.
98. Id. at 502.
99. Id. at 503-04.

100. Id. at 502.
101. Id. at 503.
102. Id.
103. Id. at 504.
104. Id.
105. 946 N.E.2d 1233 (Ind. Ct. App.), trans. denied, 962 N.E.2d 641 (Ind. 2011).
106. See id. at 1235-36.
107. Id. at 1235.
108. Id.



2012] FAMILY AND MATRIMONIAL LAW 1193

custody.109  After the final hearing, the trial court issued its decree, which stated
in pertinent part that the children were to reside with the mother through the end
of the 2008-2009 and 2009-2010 school years, with the father having physical
custody during the summers.110  The trial court also called for a review hearing
during summer 2010 to review the terms of the custody arrangement and stated
that the determination of custody at that hearing would be “governed by the ‘best
interests’ test, as opposed to the standard which governs the modification of
custody orders.”111  Neither party objected.  As the review hearing began, the trial
court reiterated its intention to utilize the “best interests” test.112  The trial court
then issued extensive findings and granted physical custody to the father.113  The
mother appealed.

On appeal, the mother argued that the court improperly applied the “best
interests” standard instead of “best interests” plus a substantial change in a factor
outlined under Indiana Code section 31-17-2-8.114  The court of appeals
determined that the mother waived this argument by not objecting to the court’s
announcement to use the “best interests” standard in both the dissolution decree
and at the beginning of the review hearing.115  

The mother’s second challenge was “that the trial court’s detailed findings
and judgment [were] clearly erroneous.”116  The court viewed this argument “an
invitation to reweigh evidence and assess witness credibility,” and refused to do
so.117 

2.  Third Party Visitation.—In Kitchen v. Kitchen,118 the Indiana Court of
Appeals considered whether the trial court erroneously concluded that it had the
authority to award third party visitation to persons other than a grandparent,
parent or step-parent.119  

In this case, sometime after the parties were married and a child was born, the
mother filed a petition for dissolution of marriage.120  In March 2006, the trial
court entered a dissolution decree whereby the parents would share legal custody
of the child, with the mother having physical custody and the father having
regular parenting time.121  The mother and child then lived with a maternal aunt

109. Id. at 1236.
110. Id. at 1239.
111. Id. (emphasis omitted) (citation omitted).
112. Id. at 1240.
113. Id. at 1244.
114. Id. at 1245-46.
115. Id. at 1246.
116. Id. at 1247.
117. Id.  Judge Kirsch dissented on the basis that the parents’ failure to object to the correct

standard cannot operate as a waiver of utilizing the correct standard.  Id. at 1247-48 (Kirsch, J.,
dissenting).

118. 953 N.E.2d 646 (Ind. Ct. App. 2011).
119. Id. at 647.
120. Id.
121. Id.



1194 INDIANA LAW REVIEW [Vol. 45:1183

and uncle until December 2007, when the mother died after an extended illness.122 
At that same time, the father petitioned the trial court for immediate custody of
the child, while the aunt and uncle filed a petition for guardianship.  Ultimately,
the father entered into an agreement with the aunt and uncle, which provided that
the aunt and uncle would be granted temporary custody and the father was
allowed parenting time.123  However, this arrangement quickly deteriorated.

In June 2009, the trial court held the previously scheduled custody hearing.124 
The father was granted full custody of the child and the aunt and uncle were
granted visitation.  Then, in March 2010, the father filed a petition requesting that
the trial court vacate the portion of its June 2009 custody order granting visitation
to the aunt and uncle.125  The trial court denied the father’s petition, finding that
the time for such a challenge had passed.126 

On review, the Indiana Court of Appeals analyzed statutes and case law,
which generally do not award third party visitation to persons other than a
grandparent, parent or step-parent.127  Noting that parental rights are
constitutionally protected under the Fourteenth Amendment, the court “adhere[d]
to the limitation of [Indiana] statutes and case law conferring standing [to petition
for visitation] only to parents, grandparents, and step-parents.”128  Thus, the court,
in accordance with these findings, determined that “[T]he trial court erred in
concluding that it had the authority to grant third-party visitation to persons other
than parents, step-parents, or grandparents.”129 

4.  Grandparent Visitation.—In M.S. v. A.L.S. (In re J.D.S.),130 the Indiana
Court of Appeals considered whether the grandmother’s petition to modify
grandparent visitation was properly dismissed due to a lack of standing.131  Here,
the father and mother had two children during their marriage.132  In 2002, the
father filed a petition for dissolution of marriage.  In 2003, the grandmother
intervened in the dissolution requesting grandparent visitation with the children. 
A month later, the trial court approved an agreed entry that gave grandmother
visitation.133 

In 2007, the grandmother sought to modify the visitation.  After a hearing, the

122. Id.
123. Id.
124. Id.
125. Id.
126. Id. at 648.
127. Id. at 648-49.
128. Id. at 649-50 (citing Troxel v. Granville, 530 U.S. 57, 65 (2000) (“[T]he interest of

parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental
liberty interests recognized by this court.”)).

129. Id. at 650.
130. 953 N.E.2d 1187 (Ind. Ct. App. 2011), trans. denied, 2012 Ind. LEXIS 319 (Ind. Jan. 5,

2012).
131. Id. at 1188.
132. Id.
133. Id.



2012] FAMILY AND MATRIMONIAL LAW 1195

trial court modified the grandmother’s visitation and included a provision that the
grandmother would not allow the children to have contact with their father during
her visitation time and that any violation would subject the grandmother’s
visitation to termination.134 

In 2008, the mother filed a contempt petition against the grandmother,
asserting that the grandmother permitted contact between the father and the
children during the grandmother’s visitation.135  After a hearing, the trial court
ordered that the grandmother’s visitation be “TERMINATED” as a result of the
violation.136  In February 2010, the father’s parental rights to the children were
terminated, and the mother’s new husband concurrently adopted the children. 
Three months later, the grandmother filed a petition to “modify” her grandparent
visitation.137  The mother moved to dismiss the petition, which was granted.  The
grandmother appealed.

On review, the court of appeals concluded that, at the time the grandmother’s
petition was filed in 2010, the father’s parental rights had already been
extinguished, thus removing the grandmother’s standing to seek visitation.138 
While the grandmother previously enjoyed a visitation order, in 2008 it was
expressly “terminated,” not suspended, limited, or otherwise reduced in a
temporary manner.139  Thus, the grandmother’s 2010 petition, despite its title, was
not really a petition to modify visitation but instead a petition to establish
visitation anew.140  Since the grandmother’s petition was not filed until after the
father’s parental rights had been terminated, the grandmother lacked standing to
seek visitation and trial court’s dismissal of her petition was proper.141 

II.  CHILD SUPPORT RULES AND GUIDELINES

The following section reviews noteworthy cases on the topic of child support
and the Indiana Child Support Rules and Guidelines (the “Guidelines”).

A.  Calculating Child Support
1.  Income Averaging Technique.—In Trabucco v. Trabucco,142 the Indiana

Court of Appeals considered, among other things, whether the trial court properly
relied upon the use of an “income averaging” technique to determine weekly
gross income for child support purposes.143  The husband and wife married in
1988, and had two children of the marriage.  The husband worked as a physician,

134. Id.
135. Id. at 1188-89.
136. Id. at 1189.
137. Id.
138. Id. at 1190.
139. Id.
140. Id.
141. Id. at 1190-91.
142. 944 N.E.2d 544 (Ind. Ct. App.), trans. denied, 962 N.E.2d 640 (Ind. 2011).
143. Id. at 547.



1196 INDIANA LAW REVIEW [Vol. 45:1183

while the wife was a homemaker.  In 2003, the parties moved from New York to
Columbus, Indiana.144

A marijuana possession conviction of the husband resulted in a six-month
suspension of the husband’s medical license.145  Struggling to rehabilitate his
medical career, the husband relocated to Nevada in 2007 and opened an urology
clinic.  The husband reported an annual income of $104,026 for 2007 and
$67,407 for 2008.146  The wife filed her petition for dissolution in 2007.  Under
the terms of a court preliminary entry, the husband transferred $200,000 from
marital accounts to a separate account to fund the college expenses for the parties’
son, with left over funds being divided equally between the parties.147 

After a final hearing, the trial court issued its decree.  The decree calculated
child support using, as the husband’s income, an average of the amounts reported
on the tax returns from 2004 through 2008, after throwing out the highest and
lowest income figures.148  The decree also awarded the husband an E*Trade
brokerage account using a date of filing value, even though the account lost
substantial value during the pendency due to market declines.149  The decree also
awarded various IRA’s to the parties.150  The decree allocated sixty-four percent
of the marital estate to the wife and thirty-six percent of the marital estate to the
husband.151  The husband appealed. 

On appeal, the husband challenged the income averaging technique used by
the trial court to calculate his income for child support purposes.152  The husband
argued that his income at the time of the final hearing was very low due to his
relocation to Nevada, and that the trial court’s income averaging technique
amounted to an unfair imputation of income.153  The Indiana Court of Appeals
rejected the husband’s argument, first noting that income averaging is a
recognized child support income calculation method, especially for the self-
employed.154  The court also noted that, because the husband failed to present
detailed documentation of his income, he cannot assign error to the method used
by the trial court.155 

The husband also alleged trial court error for including the monies used to
fund the college account in the marital estate.156  The court of appeals rejected this
argument, noting that it was uncontroverted that the account was funded with

144. Id.
145. Id.
146. Id. at 548.
147. Id.
148. Id.
149. Id. at 558.
150. Id. at 556-57.
151. Id. at 548.
152. Id. at 549.
153. Id. at 551-52.
154. Id. at 552.
155. Id. at 553.
156. Id.



2012] FAMILY AND MATRIMONIAL LAW 1197

marital property.157 
Next, the husband assigned error to the “double counting” of certain IRA’s.158 

The record suggested that various individual IRA’s may have been consolidated
into a single IRA prior to the final hearing, but the decree allocated them as
separate and distinct assets.159  The court of appeals remanded the issue for
determination by the trial court as to whether “double counting” of the IRA’s had
occurred.160 

Finally, the husband claimed error as to the valuation of the E*Trade
brokerage account that was awarded to him under the decree.161  Near the date of
filing, the account had a value of $325,132.162  Closer to final hearing, the account
was worth just $97,470.163  The husband admitted to withdrawing just over
$50,000 from the account during the pendency, but asserted that the remaining
decline of $176,000 was due to market decline and should not be counted as part
of his share of the marital estate.164  The trial court awarded the account to the
husband with a date of filing value of $325,132.165  The court of appeals recited
the well-settled doctrine that a trial court has discretion to value marital property
on the date of filing, the date of final hearing, or any date in between.166  As such,
the trial court’s valuation date was not an abuse of discretion.167

2.  Separate Child Support Worksheets.—Separate child support worksheets
should not be used for each child.  In In re Marriage of  Blanford,168 the Indiana
Court of Appeals considered whether the trial court erred by calculating child
support using separate child support worksheets for each child, where the parties
had two children, one of whom divided time equally between the parents, and one
of whom lived full-time with the mother.169 

In this case, the parties divorced in 1998, with two children.170  In 2009, the
trial court entertained various motions concerning modification of custody,
parenting time, and child support.  After hearing evidence, the court ordered that
one child would divide equal time between the parties, while the other child
would spend full-time with the mother and have no overnight parenting time with
the father due to a deterioration in the father-child relationship.  In calculating the
new child support level, the trial court used two child support worksheets, one

157. Id. at 554.
158. Id. at 556-57.
159. Id. at 557.
160. Id.
161. Id. at 558.
162. Id.
163. Id.
164. Id.
165. Id.
166. Id. at 559-60 (citing Reese v. Reese, 671 N.E.2d 187, 191 (Ind. Ct. App. 1996)).
167. Id. at 560.
168. 937 N.E.2d 356 (Ind. Ct. App. 2010).
169. Id. at 358.
170. Id. at 359.



1198 INDIANA LAW REVIEW [Vol. 45:1183

giving the father no parenting time and another giving the father 182 overnight
parenting time credit.171  The father was ordered to pay child support to the
mother in the amount of the total of the two worksheets.172  The father appealed. 

The father’s appeal highlighted a shortcoming of the child support worksheet
relevant to the case, in that use of a child support worksheet contemplates that all
of the parties’ children will have the same number of overnights with the non-
custodial parent.173  

The Indiana Court of Appeals noted that the trial court’s method for
calculating child support unfairly inflated the father’s support obligation because
of the recognition that additional children cost only marginally more to raise.174 
Thus, the trial court’s use of two child support worksheets, one for each child,
treated each child as that most expensive “first child,” and never gave the father
the appropriate, discounted support amount for a second child.175 

The father argued on appeal that the trial court should have instead used one
child support worksheet that included two children, and then, for the parenting
time credit, used an average number of overnights for the two children.176  The
court of appeals declined to adopt the father’s proposed method, noting that this
method “might extend [the father] too much or too little credit in calculating his
support obligation[,]” because the cost for the mother to have one child full-time,
and a second child half-time, is not necessarily the same as having two children
three-fourths of the time.177 

On remand, the Indiana Court of Appeals instructed the trial court to calculate
support with both children on one support worksheet, and provided that the trial
court:

adjust the number of days of overnight credit to reach what appears to be
an appropriate result for setting [the father’s] weekly support obligation.
Because the Guidelines do not afford a basis on which to set the number
of days of overnight credit, the trial court must explain the reasons for its
use of the specific number of days of overnight credit in its order.178

The trial court’s child support order was reversed and remanded.179 

171. Id. at 360-61.
172. Id. at 362.
173. Id. at 360-61.
174. Id.
175. See id. 
176. Id. at 361-62. That is, one child at zero overnights and a second child at one hundred

eighty-two overnights resulted in an average of ninety-one overnights.  See id.
177. Id. at 362.
178. Id.
179. Id.



2012] FAMILY AND MATRIMONIAL LAW 1199

B.  Complications on Ability to Pay Child Support
In J.M. v. D.A.,180 the Indiana Court of Appeals considered, among other

things, whether the trial court acted within its discretion by imputing income to
the father after he decided to leave his job and attend school full-time.181  

In 2003, the parties divorced with two children.  The father was ordered to
pay child support.  In 2008, the father petitioned to modify child support.182  At
the hearing regarding the father’s petition, evidence was presented that the father
was fired by Tyson Foods for abandoning his job.183  Prior to his firing, the father
had been earning $13 per hour plus bonuses.  After leaving Tyson, the father
became a full-time student at Ivy Tech.184   After the hearing, the trial court
denied the father’s requested modification and, further, found the father in
contempt for non-payment of child support.185  The father appealed. 

The court of appeals provided an extended discussion of the issue of
voluntary underemployment and imputation of income in child support
calculations.186  Ultimately, the court of appeals concluded that the father’s efforts
to go back to school full-time, while admirable, were not responsible in light of
having children to support (including two children with the mother, and two
subsequent children).187 

The court then noted that contempt for non-payment of child support is
proper only upon a two-part finding:  1) “that the delinquency was the result of
a willful failure by the parent to comply with the support order,” and 2) that the
“parent ha[d] the financial ability to comply.”188  Here, the trial court made no
finding concerning the father’s ability to comply.189  The Indiana Court of
Appeals concluded that the record did not support such a finding, and thus, the
trial court’s finding of contempt against the father was reversed.190 

Judge Bradford dissented.  He would have affirmed the trial court’s contempt
finding, noting that the father did not dispute that he was aware of his ongoing
child support obligation, yet chose to go to school full-time instead of working
and supporting his children.191 

In other case law during the survey period, the court further considered the
appropriateness of a contempt order for non-payment of child support.  The court
has further reinforced that a finding of contempt is appropriate only where

180. 935 N.E.2d 1235 (Ind. Ct. App. 2010).
181. Id. at 1237.
182. Id.
183. Id.
184. Id.
185. Id. at 1238.
186. Id. at 1239-42.
187. Id. at 1237, 1242.
188. Id. at 1243.
189. Id. at 1244.
190. Id.
191. Id. at 1244-45.



1200 INDIANA LAW REVIEW [Vol. 45:1183

violation of the underlying court order is willful.192

C.  Legal Standards and Bright-Line Rules in Child Support Modification
During the survey period, the Indiana appellate courts also issued case law

regarding child support modification.  While the provisions of Indiana Code
section 31-16-8-1 provide grounds for modification,193 in certain cases a
substantial and continuing change in circumstances must also support
modification.194

In Holtzleiter v. Holtzleiter,195 the Indiana Court of Appeals considered
whether a party who establishes satisfaction of the statutory bright-line test for
child support modification (that is, at least one year has passed since support was
last ordered, and a new support order would differ by at least twenty percent from
the existing order) is entitled to modification.196  In 2008, the parties divorced,
with two children.  Pursuant to the decree, the father was ordered to pay child
support of $317 per week.  This was based upon the father’s gross income at the
time of $89,239 and income imputed to the mother based upon the minimum
wage.197  Over a year later, the father filed a petition to modify.  In his petition,
the father asserted that there had been “an ongoing and substantial change in
circumstances warranting a modification of the child support.”198  

At the parties’ hearing, the father introduced a worksheet indicating that his
existing support obligation was 43.5% higher than it would be under a current
application of the Guidelines.199  This differential was attributed to the father
losing his job and taking a new job that paid $30,000 per year less, and the

192. L.R. v. N.H. (In re G.B.H.), 945 N.E.2d 753, 756 (Ind. Ct. App. 2011) (finding abuse of
discretion where the father had paid child support while employed, made diligent efforts to find
employment after losing his job, and that the father resumed paying support when his
unemployment benefits commenced).

193. IND. CODE § 31-16-8-1 (2011) (“Provisions of an order with respect to child support or
an order for maintenance . . . may be modified or revoked. . . . 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 (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.”).

194. See Reinhart v. Reinhart, 938 N.E.2d 788, 792-93 (Ind. Ct. App. 2010) (estopping the
father from relying on the provisions in Indiana Code section 31-16-8-1 because he agreed to a
support amount in excess of the guideline amount, and failed to show a substantial and continuing
change in circumstances).

195. 944 N.E.2d 502 (Ind. Ct. App. 2011).
196. Id. at 503.
197. Id. at 504.
198. Id. (citation omitted).
199. Id. at 503.



2012] FAMILY AND MATRIMONIAL LAW 1201

mother finding employment.200  However, the trial court denied the father’s
petition to modify, concluding that, while there had been a change in
circumstances, it did not render the existing support level unreasonable.201  The
father appealed. 

The court of appeals concluded that a petition to modify child support need
not expressly plead satisfaction of the twelve-month/twenty percent change
bright-line test to be considered by the trial court, something the father had not
expressly pleaded.202  Therefore, the father did not waive proceeding under the
modification statute.203  Since the father satisfied the twelve-month/twenty
percent criteria, a modification of the father’s support was appropriate.204  Thus,
the trial court’s denial of the father’s petition to modify support was reversed and
remanded for further proceedings.205  

D.  College Expenses, Ability of an Adult Child to Earn
Income, and Repudiation

1.  College Expense Obligations.—In R.R.F. v. L.L.F.,206 the court of appeals
considered, among other things, whether the trial court erred in not including the
mother’s tax credits when allocating college expense obligations.207  The parties
had two children, born in 1987 and 1991.208  Upon the parties’ dissolution of
marriage in 2001, the mother had primary physical custody and the father paid
child support and exercised parenting time.  In 2005 and 2006, the parties entered
into agreed orders that modified the father’s support obligation and provided that
the father would pay college and private school expenses for the children.209  In
2008, the parties entered into another agreed entry, providing for the father to pay
a lump sum for support from March 2008 to May 2009 (the youngest child’s
eighteenth birthday).210  The parties agreed to address any further support after
May 2009 when the time came.  The parties also stipulated that upon payment of
the lump sum, the father would have no arrearage and would be current through
May 2009.211 

Upon the youngest child’s enrollment in college, in the fall of 2009, the

200. Id. at 505.
201. Id.
202. Id. at 506.  On this point, the court acknowledged that it was reaching a different

conclusion than the 2000 Hay case, decided by another panel of the Indiana Court of Appeals.  Id.
203. Id.
204. Id. at 507.
205. Id.
206. 935 N.E.2d 243 (Ind. Ct. App. 2010), decision reached on appeal by 956 N.E.2d 1135

(2011).
207. Id. at 245.
208. Id.
209. Id.
210. Id.
211. Id.



1202 INDIANA LAW REVIEW [Vol. 45:1183

mother petitioned to modify support, establish educational obligations, establish
support for the period after May 2009, and to adjudicate arrearage.212  The trial
court granted the petition, establishing the amount of college expenses due by
each party and rejecting the father’s contention that support should begin only as
of September 2009 (the date of filing of the petition).213  The trial court
determined that instead of treating the petition as a petition to modify, it was to
be treated as a petition to establish support, and thus, could relate back to May
2009.214 

The father also requested set-offs for nonconforming support contributions.215 
The trial court found that these set-offs did not meet the requirements set forth by
Indiana law, and therefore, declined to give the father any set-off.216  The trial
court also declined the father’s request for reimbursement from the mother for tax
credits she received for college payments that the father was not entitled to.217 
The trial court noted it was without jurisdiction to “usurp federal tax law” that
allowed the credits.218  The father appealed, presenting three issues for review: 
the order to pay retroactive support; the denial to award the father a set-off in
light of the tax credits the mother will receive as a result of the child’s enrollment
in college; and the denial to award the father credit for nonconforming support
payments.219

The Indiana Court of Appeals found that the trial court did not err when it
treated the “modification” petition as a petition to establish support for the time
period after May 2009, giving weight to the prior agreed entry that stated the
parties would revisit the issue when the time comes.220  The court held that the
provision in the parties’ agreed entry, whereby the father ceased support upon the
child’s eighteenth birthday, was contrary to law and void, as the child had not
been emancipated.221 

Next, the court considered the father’s contention that the trial court did not
properly consider the significant tax credit the mother would receive for her
contribution to the child’s college expenses before assigning each party’s
obligation.222  The division of expenses was ordered to be approximately sixty-
four percent for the father and thirty-six percent for the mother.223  After the
mother’s significant tax credit, her actual obligation was to be only 1%.224  Citing

212. Id. at 246.
213. Id.
214. Id. at 246-47.
215. Id. at 247.
216. Id.
217. Id. at 248.
218. Id.
219. Id. at 248-52.
220. Id. at 248.
221. Id. at 248-49.
222. Id. at 249.
223. Id.
224. Id. at 251.



2012] FAMILY AND MATRIMONIAL LAW 1203

Guideline 8(b) and Borum v. Owens,225 the court remanded with the instructions
that the trial court consider the reduction in the parents’ obligation toward college
expenses realized by the mother’s tax credit and then apportion the parties’
obligation appropriately.226

The father’s final assertion was the trial court erred in failing to give him
credit for certain nonconforming support payments.227  After the May 2009 child
support obligation ceased, the father made several payments for the child “in
much the same way that he would have had the child support order been in
place.”228  The court treated these as payments of an undefined support
obligation.229  The court remanded with the instruction that “the [trial] court shall
issue an order crediting the [f]ather for those payments.”230

2.  Support to an Adult Child.—In Sexton v. Sedlak,231 the Indiana Court of
Appeals considered, among other things, whether the trial court acted within its
discretion by not terminating child support as to a child who was over eighteen
and not enrolled in school, even though there was evidence presented that the
child was earning in excess of the minimum wage.232  

The parties married in 1989, and divorced with three children in 1998. 
Pursuant to the parties’ original decree, the parties shared legal and physical
custody of the children, and no child support was due between the parties.  In
2002, following a motion by the mother and a hearing, primary physical custody
of the children shifted to the mother, and the father was ordered to pay support
of around $154 per week.233  The father paid accordingly through August 2005,
when the parties apparently made an informal change in the custody arrangement;
two months later, the mother filed a petition to modify child support, reciting that
the parties had returned to shared custody and that child support payments should
be terminated.234  The trial court denied that motion and took no action, referring
the parties to seek legal counsel, to prepare child support worksheets, etc.  No
further action was taken on this support modification petition.235  In 2006, the
parties signed and notarized an agreement that provided for shared custody and
recited that no child support payments would be due between the parties. 

225. 852 N.E.2d 966, 969 (Ind. Ct. App. 2006) (“If the trial court determines that an order for
college expenses is appropriate, the parents’ contributions shall be roughly proportional to their
respective incomes.”).

226. R.R.F., 935 N.E.2d at 250-51.
227. Id. at 251.
228. Id. at 252.
229. Id.
230. Id.
231. 946 N.E.2d 1177 (Ind. Ct. App. 2011), trans. denied, 2011 Ind. LEXIS 666 (Ind. July 20,

2011).
232. Id. at 1180.
233. Id.
234. Id.
235. Id. at 1181.



1204 INDIANA LAW REVIEW [Vol. 45:1183

However, the agreement was not filed with the trial court.236 
In early 2009, the oldest of the parties’ three children turned twenty-one.237 

In June 2009, the father filed a motion to emancipate the parties’ middle child,
who was nineteen, along with a request to modify custody and support for the
youngest child.238  Following a hearing, the father’s request to emancipate the
middle child was denied.  Further, the trial court calculated a net arrearage of
$28,000 based primarily upon the father’s lack of support payments since 2005,
and in spite of the apparent informal agreement between the parties that no
support would be due during that time.239  The trial court also reduced the father’s
support obligation, from the $154 per week obligation that had existed since
2002, to $117 per week.240  However, the support was lowered retroactively only
to June 2009 when the father’s petition to modify was filed.241  The father
appealed. 

The father’s primary argument on appeal was that the trial court erred when
it did not retroactively modify his child support obligation to $0 for the period
back to the mother’s 2005 petition to modify that was never acted upon.242  The
court of appeals disagreed, concluding that the trial court acted within its
discretion by using June 12, 2009, as the effective date for support
modification.243 

Next, the father assigned error to the trial court’s refusal to terminate child
support as to the parties’ middle child.244  It was uncontroverted that this child
was over eighteen and was not attending or enrolled in school.245  Disputed,
however, was the ability of this child to support herself.246  The father referred to
evidence in the record of this child earning in excess of the minimum wage.247 
However, the court of appeals concluded that this earning history did not per se
establish cause to terminate weekly support and, instead, the father was simply
asking the court of appeals to reweigh evidence.  The court of appeals concluded
that the trial court’s decision not to terminate weekly support as to the parties’
middle child was within its discretion.248 

Finally, the father appealed the calculation of his new child support
obligation.249  The court of appeals rejected various arguments by the father as to

236. Id.
237. Id.
238. Id.
239. Id. at 1181-82.
240. Id. at 1182.
241. Id.
242. Id. at 1183.
243. Id. at 1186.
244. Id.
245. Id. at 1187.
246. Id.
247. Id.
248. Id. at 1188.
249. Id.



2012] FAMILY AND MATRIMONIAL LAW 1205

the trial court’s imputation of income based upon voluntary underemployment.250 
However, the court of appeals agreed with the father that the trial court erred
when it failed to consider the amount that the parties’ middle child was earning
in calculating the child support amount.251  Thus, while the trial court’s order was
generally affirmed, the calculation of the new support level was reversed and
remanded for consideration of the middle child’s ability to support herself in
calculating the father’s child support obligation.252 

3.  Repudiation.—Repudiation is not a release of responsibility for child
support payments but may obviate a parent’s obligation to pay certain expenses. 
In Lechien v. Wren,253 the Indiana Court of Appeals considered, among other
things, whether repudiation was a release of a parent’s financial responsibility for
the payment of child support.254  The parties were married and had two
children.255  The daughter was born in 1987 and the son was born in 1991.  In
1999, the mother filed a petition for dissolution of marriage, and in 2000 a decree
of dissolution was granted.  The court awarded physical custody of both children
to the mother.256  Then, in 2008, the court entered a nunc pro tunc order, restoring
the mother’s maiden name.  Also in 2008, the court ordered the father to pay
child support for the son in the amount of $177 per week.  In 2009, the son filed
a petition to have his last name changed from the father’s last name to the
mother’s maiden name.257  “During the hearing on his request, the son
acknowledged that by changing his name a judge could later decide that he was
repudiating his father and that he did not want any help from him and that support
could end.”258 

In 2010, the mother filed a modification petition and requested support for
son’s higher education.  She alleged that the son would be residing with her while
attending college at IUPUI and requested support modification and a higher
educational support order dividing college expenses between herself, the father,
and the son.259  The trial court found that the son and the father had a troubled
relationship since the divorce, with the father having sporadic parenting time.260 
The trial court also found that in spite of the judge’s warning of the possible
adverse effects of the requested name change upon receiving college money from

250. Id. at 1189.
251. Id. at 1190.
252. Id.  Judge Kirsch dissented in a separate opinion, expressing concern that the majority

opinion “promote[d] formalism over fairness” in addressing the retroactive modification.  Id. at
1190-91 (Kirsch, J., dissenting).

253. 950 N.E.2d 838 (Ind. Ct. App. 2011).
254. Id. at 840.
255. Id.
256. Id.
257. Id.
258. Id.
259. Id.
260. Id.  In fact, the trial court determined that the father had no parenting time since 2008. 

Id. (citation omitted).



1206 INDIANA LAW REVIEW [Vol. 45:1183

the father, the son nevertheless sought to change his name to the mother’s maiden
name.261  Pursuant to Indiana case law, the trial court concluded that the son had
repudiated the father and was not entitled to college expense contribution from
him.262  The trial court further concluded that the father’s duty to pay child
support should be modified, ordering the father to pay $69 per week for the
son.263 

The mother appealed the trial court’s order, raising two issues:  1) whether
the evidence supported the trial court’s determination that the son repudiated his
relationship with the father; and 2) whether the trial court erred in modifying the
father’s weekly child support obligation.264  

Upon review, the court found that the evidence supported the trial court’s
conclusion that the son repudiated his relationship with the father.265  The court
then found “that while Indiana law recognizes that a child’s repudiation of a
parent under certain circumstances will obviate a parent’s obligation to pay
certain expenses, . . . any such repudiation is not a ‘release of a parent’s financial
responsibility to the payment of child support.’”266  The court concluded that
“repudiation [was] not an acceptable justification to abate support payments for
a child less than twenty-one years of age.”267 

Based upon the record and the Guidelines, the court concluded that the trial
court erred in adjusting the father’s support obligation.268  The court found this
result

consistent with the general duty of a parent to provide support for a child
until the child is twenty-one years old, and as previously stated
repudiation [was] not a release of a parent’s financial responsibility for
the payment of child support and [was] not an acceptable justification to
abate support payments for a child less than twenty-one years of age.269

The court affirmed the trial court’s determination that the son repudiated his
relationship with the father, reversed the court’s modification of the father’s child
support obligation from $177 to $69, and remanded the case to the trial court with
instructions to enter a child support order consistent with its opinion.270

III.  ISSUES PERTAINING TO RELOCATION

From time to time in Indiana family law issues pertaining to relocation,

261. Id. at 841.
262. Id.
263. Id.
264. Id. at 842, 844.
265. Id. at 844.
266. Id. at 845 (quoting Bales v. Bales, 801 N.E.2d 196, 199 (Ind. Ct. App. 2004).
267. Id. (citing Bales, 801 N.E.2d at 199-200).
268. Id. at 847.
269. Id. (citing Bales, 801 N.E.2d at 199-200).
270. Id.



2012] FAMILY AND MATRIMONIAL LAW 1207

attempts at jurisdictional advantage by maintaining a substantial connection to
Indiana, and enforcement of foreign child support orders arise. The following
section reviews several such noteworthy cases from the survey period.

A.  Burden of Demonstrating a Proposed Relocation
In T.L. v. J.L.,271 the Indiana Court of Appeals clarified case law regarding the

“legitimate” and “good faith” reasons for a proposed relocation.  In dicta, the
court of appeals suggested that the first prong of the relocation test—that the
reasons for the proposed relocation are legitimate and made in good faith—was
not intended to be too high a bar, such that the trier-of-fact never gets to the more
important second prong:  the best interests of the child.272 

In T.L., the parties married in 1999, had two children together, and divorced
in 2009.273  They shared joint legal custody of the children, with the mother
having primary physical custody of the children subject to the father’s parenting
time, which was exercised regularly.  The father had been a lifelong resident of
Montgomery County, Indiana.  In 1998, the mother moved to Montgomery
County from Tennessee for her job.274  The father had extended family in the
area; the mother had extended family back in Tennessee. 

In early 2010, the mother filed a notice of intent to relocate to Tennessee after
her employer closed its operations.275  The mother’s petition stated a variety of
reasons for the proposed move:  her older family members were in poor health
and need her care; she had a better support network in Tennessee; she had better
employment opportunities in Tennessee; and the children would have an excellent
quality of life in Tennessee.276  The father objected to the mother’s proposed
relocation. 

The trial court concluded that the mother had failed to satisfy the first prong
of the relocation test.  Specifically, the court found that the mother “failed to meet
her burden of proof that the proposed relocation [was] for a legitimate reason and
in good faith.”277  The trial court also noted that the father had “clearly shown that
the move would not be in the best interests of the children.”278  The mother
appealed. 

The Indiana Court of Appeals, reviewing this issue, noted:

[O]ur case law has not set forth explicitly the meaning of legitimate and
good faith reasons in the relocation context . . . . it is common in our
society that people move to live near family members, for financial

271. 950 N.E.2d 779 (Ind. Ct. App. 2011), reh’g denied, 2011 Ind. App. LEXIS 1617 (Aug.
17, 2011).

272. Id. at 788.
273. Id. at 780.
274. Id.
275. Id. at 782.
276. Id.
277. Id. at 783 (citation omitted).
278. Id. (citation omitted).



1208 INDIANA LAW REVIEW [Vol. 45:1183

reasons, or to obtain or maintain employment. We infer that these and
similar reasons—such as mother gave and the trial court largely
accepted—are what the legislature intended in requiring that relocation
be for “legitimate” and “good faith” reasons. . . .

If part one, the requirement of a legitimate and good faith reason,
posed an inordinately high bar for a relocating parent to meet, it could
too often prevent trial courts from reaching part two and appropriately
deciding the dispute based upon the best interests of the affected child.279

Thus, the court of appeals concluded that the mother had advanced legitimate,
good faith reasons for the proposed relocation.280  Nevertheless, after a detailed
review of the factors affecting the children were they to remain in Indiana or
relocate to Tennessee, the court of appeals concluded that “the evidence
supported the trial court’s conclusion that relocation . . . was not in the children’s
best interests.”281  As a result, the trial court’s judgment denying the mother’s
request to relocate was affirmed.282 

B.  Jurisdiction in the Aftermath of Relocation
In Lombardi v. Van Deusen,283 the Indiana Court of Appeals considered

whether the trial court had jurisdiction over a child support modification issue,
in the aftermath of relocation.  The parties’ marriage was dissolved in 1999 and
the father was ordered to pay child support.284  After the divorce, the father moved
to Illinois.  The mother later filed for a support modification in the Illinois county
where the father lived.  The Illinois county had jurisdiction pursuant to an agreed
order filed in the Indiana court and signed by both parties.285  The Illinois court
modified the child support order.  The father did not object to Illinois jurisdiction. 

In 2004, the father filed a motion with the Indiana court asking it to reassume
jurisdiction over parenting and child support matters.286  The mother objected. 
The Indiana court made a CCS entry indicating that since both parties wished that
jurisdiction remain in Indiana, it reassumed jurisdiction.287  The mother again
objected.  Later that year, the father filed a petition to modify child support in the
Indiana court, arguing that Illinois no longer had jurisdiction because he moved
to Pennsylvania.288  The mother again objected.  The Indiana court took no action
on this petition for five years, and during this time, the mother received no child

279. Id. at 787 (citations omitted).
280. Id.
281. Id. at 790-91.
282. Id. at 791.
283. 938 N.E.2d 219 (Ind. Ct. App. 2010).
284. Id. at 221.
285. Id.
286. Id.
287. Id. at 221-22.
288. Id. at 222.



2012] FAMILY AND MATRIMONIAL LAW 1209

support from the father.289  In 2009, the father filed a motion to establish child
support, arguing for the first time that the Illinois court had not had subject matter
jurisdiction; therefore, its prior modification of the original Indiana support order
was void.290 

The Indiana court held a hearing on this motion in 2009.291  Immediately prior
to the hearing, the father and his counsel attended a conference in chambers,
which the mother (who appeared pro se) was not permitted to attend. 
Additionally, during the hearing, the mother was not allowed uninterrupted
argument.  After cutting the hearing short at the request of the father’s attorney,
the trial court granted the father’s motion, finding the Illinois court never had
jurisdiction and that the original support order remained in effect.292  The mother
appealed.

The court of appeals was unconvinced by the father’s argument that the
Illinois court never had jurisdiction.293  The mother properly registered the child
support order in Illinois, and the parties filed an agreed order in the Indiana court
transferring jurisdiction over child support issues to Illinois.294  Indiana no longer
had jurisdiction over the child support at that point.295  

Turning toward the Indiana court’s actions, the appellate court determined
that the Indiana court never reassumed jurisdiction after the Illinois court because
the father did not follow the Uniform Interstate Family Support Act (UIFSA)
requirements.296  The court of appeals noted that the Indiana court, if it had
jurisdiction, could have issued a prospective modification, but not a retroactive
modification.297  Therefore, the court held that the Illinois court’s modification
order was valid and the Indiana court’s order declaring it a nullity was invalid,
along with its purported retroactive modification.298 

The court also took exception to the trial court’s conduct by holding an ex
parte meeting that explicitly excluded the mother.299  The court ordered that on
remand, the case must be assigned to a different judge.300 

IV.  PATERNITY AND MATERNITY

Issues pertaining to paternity and—occasionally maternity—arise in Indiana
family law.  The following section reviews several such noteworthy cases from

289. Id.
290. Id.
291. Id.
292. Id. at 222-23.
293. Id. at 224.
294. Id.
295. Id.
296. Id. at 225.
297. Id. at 226.
298. Id.
299. Id. at 227.
300. Id.



1210 INDIANA LAW REVIEW [Vol. 45:1183

the survey period.

A.  Establishing Paternity
1.  Admission of Mail-In DNA Tests.—In In re T.M.,301 the Indiana Court of

Appeals considered whether a trial court abused its discretion in a paternity suit
by refusing to admit a mail-in DNA test, where there was no information in the
trial court record establishing a foundation to support the reliability of the results. 

In this case, the child was born in 1995 to unmarried parents.302  The father
executed a paternity affidavit the day after the child’s birth, claiming to be the
child’s natural father.  In 1997, the father and the mother filed a joint petition to
establish support and related matters.  Several days later, the court entered an
order establishing their parental status.  Up until the child reached the age of
fourteen, the father held himself out to be the child’s father.303  In 2009, the
father’s wife purchased a DNA kit from Walgreens and required that the father
and the child take mouth swabs and mail them in for testing.  The mother did not
provide her permission for the child to participate in the test.304  The results of the
DNA test was issued by e-mail and informed the father that he was not the child’s
biological father.  In 2010, the father moved to set aside his paternity affidavit
and for DNA testing.305

At the hearing, the trial court refused to admit the mail-in DNA results into
evidence following the mother’s objection on the grounds that they were not
properly certified.306  The trial court then denied the father’s petition, “finding no
fraud, duress or mistake of fact.”307  The trial court noted by the father relied on
the mail-in paternity test in petitioning to rescind his paternity affidavit, “the
results of which were not obtained through the course of ordinary medical care
or inadvertent discovery.”308  The trial court further noted that the mother testified
regarding her exclusive relationship with the father, believing that he was in fact
the biological father of the child.309  The father appealed.

On appeal, the court of appeals found that there was no dispute that the father
executed a paternity affidavit in 1995 claiming to be the child’s biological
father.310  The court then noted that once a man has executed a paternity affidavit
according to the statutory requirements, “he is the child’s legal father unless the
affidavit is rescinded pursuant to the same statute.”311  Considering that the father

301. 953 N.E.2d 96 (Ind. Ct. App.), trans. denied, 962 N.E.2d 649 (Ind. 2011).
302. Id. at 97.
303. Id.
304. Id.
305. Id.
306. Id.
307. Id. at 98.
308. Id.
309. Id.
310. Id.
311. Id.  The statutory requirements for a paternity affidavit are found in Indiana Code section



2012] FAMILY AND MATRIMONIAL LAW 1211

filed his petition to rescind his paternity fourteen years after he executed it, the
court held that “a man who executed a paternity affidavit may not fail to timely
request genetic testing under Indiana Code section 16-37-2-2.1 and then, as a
matter of course, request such testing as a fishing expedition.”312  The court stated
that legal fathers may not rescind paternity after the sixty-day time limitation,
unless fraud, duress or a material mistake of fact is present.313  The court further
noted that paternity may be challenged by the legal father only in “extreme and
rare instances,” using “evidence that has become available independently of court
action.”314 

The court found that admissibility of evidence, such as the mail-in DNA test,
was a matter within the trial court’s discretion and was reversible only upon a
showing of abuse of discretion.315  The court considered that the mail-in DNA kit
“specifically stated it was not to be used for legal purposes, and there was no
information from the purported laboratory where the tests were conducted, or the
persons conducting those tests, establishing a foundation to support the reliability
of their results.”316  Moreover, the court could find no place in the trial court
record where the father introduced facts in support of the admissibility and
reliability of such tests.317

The court distinguished the matter from In re Paternity of M.M.,318 “wherein
. . . [the court of appeals] reversed and remanded for genetic testing when two
genetic tests showed that a father, who had executed a paternity affidavit for a
child, shared no genetic link to the child.”319  While the court found that the tests
in In re M.M. were unclear, both parents consented to the genetic testing, both
parents took a DNA test, these results were admitted at trial, and the father’s relief
was denied on public policy grounds.320  Therefore, the court emphasized the
importance of the fact that the admissibility of tests in In re M.M. was not at
issue, but also contrasted the cases based on the number of tests conducted,
whether both parents consented, and whether the mothers offered testimony
unsupportive of a finding of fraud.321  The court affirmed the trial court’s
judgment, finding no abuse of discretion in the trial court’s refusal to admit the
test results.322 

2.  Sperm Donor Agreements.—In J.F. v. W.M. (In re M.F.),323 the Indiana

16-37-2-2.1.  See id.
312. Id. at 99 (citation omitted).
313. Id.
314. Id. (citations omitted).
315. Id.
316. Id.
317. Id.
318. 889 N.E.2d 846 (Ind. Ct. App. 2008).
319. In re T.M., 953 N.E.2d at 99 (citing In re M.M., 889 N.E.2d at 849).
320. Id. (citing In re M.M., 889 N.E.2d at 849).
321. Id.
322. Id.
323. 938 N.E.2d 1256 (Ind. Ct. App. 2010), reh’g denied, 2011 Ind. App. LEXIS 475 (Mar.



1212 INDIANA LAW REVIEW [Vol. 45:1183

Court of Appeals considered whether the trial court erred in interpreting how a
sperm donor agreement applied to paternity issues.  The mother was cohabiting
and in a long-term relationship with a woman (“life partner”).324  The father, a
friend of the mother’s, agreed to provide sperm to the mother, which resulted in
a pregnancy.  After conception, but before birth, the parties signed a donor
agreement that contained provisions whereby the mother waived all right to
financial assistance and support from the father; the father waived all rights of
custody or visitation for the resulting child.325  The donor agreement also
contained a covenant not to sue in which the mother and father agreed to refrain
from bringing an action to establish legal paternity.  The child was born in
September 1996.326  Years later, in 2003, another child was born to the mother,
while the mother and life partner were still together. 

In 2008, the relationship ended between the mother and life partner, and the
mother filed for financial assistance, which ultimately resulted in the county filing
a petition to establish paternity.327  The father responded with multiple defenses,
all grounded in the donor agreement. It was established through DNA testing that
the father was the biological father of both children.328  At the hearing, the father
stressed that the donor agreement precluded a paternity action.  The mother
claimed that the donor agreement was invalid as against public policy, running
“afoul of the principle that the law will not enforce a contract that divests a child
of support from either parent.”329  Entering findings and conclusions sua sponte,
the trial court held that the donor contract was valid and that the mother was
prohibited from establishing paternity with the father.330  The mother appealed.

The court of appeals determined that the viability of the donor agreement
depended on the manner in which insemination occurred.331  According to Straub
v. B.M.T.,332 if insemination occurred via intercourse, the donor agreement would
be unenforceable as against public policy.333  The court determined that because
the mother was looking to avoid the donor agreement, she maintained the burden
of proof on such matters of avoidance.334  While recognizing the strong public
policy in favor of parents supporting their biological children, the court could not

14, 2011).
324. Id. at 1257.
325. Id. at 1257-58.
326. Id. at 1258.
327. Id.
328. Id.
329. Id.
330. Id.
331. Id. at 1260.  Other criteria for the enforceability of donor agreements are that a physician

be involved in the insemination process and that a written, thorough, and formalized instrument
exist to memorialize the arrangement.  Id. at 1261 n.1.

332. 645 N.E.2d 597 (Ind. 1994).
333. In re M.F., 938 N.E.2d at 1259-60.
334. Id. at 1260.



2012] FAMILY AND MATRIMONIAL LAW 1213

find any legal basis for allocating the burden to the father.335  The court
determined that the trial court did not err in denying her petition to establish
paternity for the older child.336  The court then addressed the issue as it related to
the younger child. 

The donor agreement contained a clause that the father would not be
responsible for the older child “and any further children which might result from
the [the father’s] donated sperm.”337  However, the rest of the donor agreement
was drafted with the older child in mind, by using such phrases as “the child,”
“such child” and “the child due to be born on or about September 19, 1996.”338 
The court concluded that the trial court erred in applying the donor agreement to
the younger child as the donor agreement indicated that the contract applied
specifically and only to the older child.339 

B.  Setting Aside Paternity
1.  Paternity Based on Fraud or Mistake.—During the survey period, the

court of appeals addressed the time limitation to set aside paternity based on
intrinsic fraud.  In Jo. W. v. Je. W.,340 the court of appeals reviewed a decision that
a father’s motion to establish paternity was not an independent action, as the
father did not allege or present evidence of extrinsic fraud or fraud upon the
court. 

In this case, the parties were married in 2001, and a child was born in 2003.341 
The mother filed for dissolution of marriage in 2005, and the trial court entered
the dissolution decree in 2006.342  Four years later, in 2010, the father filed a
verified motion to establish paternity.343  The trial court denied the father’s
motion, finding that the motion did not comply with the time limits required by
Indiana Trial Rule 60(B)(3).344  The father then filed a motion to correct error
which the court also denied.  The father appealed. 

On appeal, the father asserted that the mother committed extrinsic fraud by
indicating on the dissolution petition that there was a child born of the
marriage.345  In considering this allegation, the court noted that Trial Rule
60(B)(3) contemplates “a motion based on intrinsic fraud, extrinsic fraud, or

335. Id.
336. Id. at 1261.
337. Id. at 1262 (emphasis omitted).
338. Id. at 1262-63 (citation omitted).
339. Id. at 1263.  Judge Crone dissented, arguing that the father should bear the burden of

proving the consistency between the donor agreement and public policy.  Id. at 1264-65 (Crone,
J., dissenting).

340. 952 N.E.2d 783 (Ind. Ct. App. 2011).
341. Id. at 784-85.
342. Id. at 785.
343. Id.
344. Id.
345. Id. at 786.



1214 INDIANA LAW REVIEW [Vol. 45:1183

fraud on the court . . . if the fraud was committed by an adverse party and had an
adverse effect on the moving party.”346  Additionally, the court noted that while
relief under Trial Rule 60(B)(3) has a one-year time limit, this does not prohibit
the trial court from entertaining an independent action for relief from a judgment,
order or proceeding, or for fraud upon the court.347  The court then found that
“[a]n independent action can be brought within a reasonable time after the
judgment and must allege either extrinsic fraud or fraud upon the court.”348 

When the mother filed the dissolution action, she was required to include any
child “of the marriage” in the dissolution petition as set forth in Indiana Code
section 31-15-2-5.349  The court found that the child was presumed to be of the
marriage.350  The court noted that the father failed to attend the dissolution
hearing, did not respond to the mother’s petition, and failed to rebut the
presumption of paternity.351  Moreover, the court considered that the father did
not argue that the mother questioned the child’s paternity or ever indicated that
he might not be the father, nor did he present evidence that the mother improperly
influenced the court’s decision.352  Thus, the court found that the elements of
extrinsic fraud and fraud upon the court were not satisfied.353  The court
concluded that the fraud alleged by the father was only intrinsic fraud, governed
by Trial Rule 60(B)(3).354  Therefore, the father’s motion for relief needed to be
brought within one year from the date of the judgment challenged.355 

2.  Vacating Child Support Arrearages.—Child support arrearages should be
vacated if paternity is based on fraud or mistake.  In C.L. v. Y.B. (In re Paternity
of D.L.),356 the court of appeals considered whether a child support arrearage that
accrues in a man who mistakenly believes he is the father of the child should be
vacated if genetic testing subsequently determines the man is not the father and,
thus, the paternity was based upon fraud or a mistake of fact. 

In this case, in 1996, the mother gave birth to a child, and then brought a
paternity action against the purported father.357  The purported father admitted
paternity, and was ordered to pay child support.  In 2008, the purported father
petitioned to modify custody of the child.  At the time, he had a child support
arrearage.358  After a hearing, the trial court modified custody and reduced the

346. Id. at 785 (citation omitted).
347. Id. at 786 (citing IND. TR. R. 60(B)).
348. Id. (citation omitted).
349. Id.
350. Id.
351. Id.
352. Id.
353. Id. at 786-87.
354. Id. at 787.
355. Id.
356. 943 N.E.2d 1284 (Ind. Ct. App. 2011).
357. Id. at 1284.
358. Id. at 1285.



2012] FAMILY AND MATRIMONIAL LAW 1215

purported father’s weekly child support obligation.359  In 2008, the mother put the
issue of custody back before the court.  DNA testing was ordered by
agreement.360  The result of the DNA testing established that the purported father
was not the child’s biological father.361  It was later determined the biological
father’s paternity had been established by stipulation in another cause number.362 
At the time, purported father had a support arrearage of approximately $9000.363 
The trial court denied the purported father’s request to vacate his arrearage and
he subsequently appealed.364 

On review, the Indiana Court of Appeals noted Indiana Code section 31-14-
11-23, which provides:  “If a court vacates or has vacated a man’s paternity of a
child based on fraud or mistake of fact, the man’s child support obligation,
including any arrearage, terminates.”365  Based upon this statute, and in a review
of first impression, the court of appeals concluded that the purported father’s
paternity was based upon a mistake of fact and, therefore vacated the arrearage.366 

3.  Setting Aside Paternity.—In J.M. v. M.A.,367 the Indiana Supreme Court
considered whether genetic testing that excludes the party as the biological father
is required, when a party seeks to set aside a paternity affidavit.  The mother and
“father” began dating in 1998, at which time the mother was already four months
pregnant with what both parties knew was another man’s child.368  When the
mother gave birth, the “father” signed a paternity affidavit acknowledging himself
as the natural father of the child.  The “father” was not quite eighteen years old
at the time.369 

In 2009, upon the application of benefits for the child, the State intervened
by filing a Title IV-D petition against the “father” to establish child support and
health insurance coverage.370  The “father” was given notice, and a hearing was
set.371  The “father” filed a pro se motion for continuance, reciting that he was
working out-of-state and was trying to obtain legal counsel.  The “father’s”
continuance was denied, and in his absence, the trial court entered a default
judgment adjudicating the “father” as the father of the child, and ordering him to
pay support of $47 per week.372 

359. C.L. v. V.B. (In re D.L.), 938 N.E.2d 1221, 1223 (2010), clarified and aff’d, 943 N.E.2d
1284 (Ind. Ct. App. 2011).

360. In re D.L., 943 N.E.2d at 1284.
361. Id. at 1284-85.
362. Id. at 1285.
363. In re D.L., 938 N.E.2d at 1223.
364. In re D.L., 943 N.E.2d at 1285.
365. Id. (quoting IND. CODE § 31-14-11-23 (2011)).
366. Id.
367. 950 N.E.2d 1191 (Ind. 2011).
368. Id. at 1191.
369. Id.
370. Id. at 1192.
371. Id.
372. Id.



1216 INDIANA LAW REVIEW [Vol. 45:1183

The “father” obtained counsel, and filed a motion to set aside the default
judgment of paternity and support.373  At the hearing on that motion, the evidence,
including testimony from the mother, was that the “father” was not the child’s
biological father, and that the mother was puzzled as to why the “father” signed
the paternity affidavit in the first place.374  The trial court denied “father’s”
motion to set aside, and the “father” appealed.

The court of appeals agreed with the “father” that the trial court erred when
it refused to set aside its default judgment against the “father.”375  Indiana Code
section 31-14-7-3 permits a paternity affidavit to be rescinded only after a
determination that:  (1) fraud, duress, or material mistake surrounded its
execution; and (2) that genetic testing excludes the man as the child’s father.376 
The court of appeals concluded that, under the totality of the circumstances, the
“father’s” execution of the paternity affidavit constituted a material mistake of
fact.377  And, importantly, the court of appeals determined it unnecessary to meet
the technical statutory requirement of genetic testing in light of the stipulation of
all parties regarding paternity.378  Thus, the court of appeals vacated the trial
court’s order finding paternity and ordering support.379 

The Indiana Supreme Court granted transfer.  The supreme court also agreed
it was appropriate to reverse the denial of the motion to set aside the trial court’s
default judgment.380  However, the supreme court disagreed with the court of
appeals’ conclusion that the statutory genetic testing requirement could be
avoided.381  Therefore, the supreme court remanded the issue to the trial court so
that the request to rescind the paternity determination could be made in
compliance with Indiana Code section 31-14-7-3.382 

C.  Custody Issues in Paternity Cases
Indiana case law suggests that the trial court has significant discretion in

deciding custody issues; however, the best interests of the child must be
considered.383

373. Id.
374. Id.
375. Id.
376. Id. at 1192-93.
377. Id. at 1192.
378. Id.
379. Id.
380. Id. at 1193.
381. Id.
382. Id.
383. See K.W. v. B.J. (In re M.W.), 949 N.E.2d 839, 843 (Ind. Ct. App. 2011) (reversing the

trial court where “nothing in the record indicate[d] that the trial court considered the best interests
of [the child] before determining custody,” and where the mother did not know custody would be
decided at the hearing).



2012] FAMILY AND MATRIMONIAL LAW 1217

1.  Suspending Parenting Time.—In P.S. v. W.C. (In re W.C.)384 the Indiana
Court of Appeals considered whether the trial court erred by suspending the
mother’s parenting time in the absence of evidence that the mother endangered
the child’s physical health and well-being, or significantly impaired the child’s
emotional development.385  The parties had one child together in 2000.386  The
father’s paternity of the child was established two years later, and the father
received parenting time under the Guidelines.387  In 2009, custody was modified
from the mother to the father, and in 2010, the trial court significantly the
restricted the mother’s parenting time.388 

At a subsequent review hearing, the father testified in detail about the
mother’s parenting time interactions with the child, claiming she was treating him
like a baby and discussing the ongoing court proceedings.389  Following this
review hearing, the trial court issued an order suspending the mother’s parenting
time and contact with the child.390  The mother appealed.

On appeal, the court of appeals first observed that the trial court “failed to
make the requisite statutory finding of endangerment to [the child’s] physical
health and well-being or significant impairment to [the child’s] emotional
development.”391  The court noted that the mother’s parenting time was already
limited and that the record presented “does not approach the egregious
circumstances in which we have previously found that parenting time may be
terminated.”392  Therefore, because no evidence in the record supported the
conclusion that the mother posed a threat to the child, the suspension of parenting
time was reversed.393  

2.  Modifying Joint Custody to Sole Custody.—In B.M.S. v. E.M. (In re
A.S.),394 the Indiana Court of Appeals reviewed the trial court’s decision to
modify joint legal and physical custody of the daughter, in light of evidence that
the parties failed to co-parent effectively.395  The mother and the father had one
child together, a daughter, who was born in 2007.396  In 2008, paternity was
formally established, and the parties agreed to joint legal custody, and an
alternating weekly equal-time parenting schedule.397

Subsequently, the parties’ co-parenting relationship became increasingly

384. 952 N.E.2d 810 (Ind. Ct. App. 2011).
385. Id. at 811.
386. Id.
387. Id.
388. Id.
389. Id. at 812-13.
390. Id. at 814.
391. Id. (citing IND. CODE § 31-14-14-1(a) (2011)).
392. Id. at 816-17 (citation omitted).
393. Id. at 817.
394. 948 N.E.2d 380 (Ind. Ct. App. 2011).
395. Id. at 381.
396. Id. at 381-82.
397. Id.



1218 INDIANA LAW REVIEW [Vol. 45:1183

hostile and acrimonious.398  Matters came to a head when the mother began to
threaten to withhold parenting time, which resulted in the father filing a motion
for custody and parenting time, to which the mother responded with a petition to
modify custody.  After a hearing, the trial court modified the joint custody
arrangement to sole legal custody and primary physical custody with the mother,
subject to alternating weekend parenting time with the father.399  The father
appealed. 

The father disputed whether the modification by the trial court was in the
daughter’s best interests.400  The father’s appeal endeavored to critique the
mother’s parenting behaviors to portray her as the less capable parental figure,
and argued that custody should have been awarded to him.401  Nevertheless, the
court of appeals determined that there was ample evidence that the parties could
no longer co-parent effectively, and that the father was less willing to be
cooperative than the mother.402  Thus, the modification of custody was not an
abuse of discretion.403 

3.  Appointment of a Parenting Coordinator.—In K.L. v. M.H. (In re C.H.),404
the Indiana Court of Appeals reviewed the trial court’s decision to appoint a
Level II Parenting Coordinator.405  The parties dated and lived together in 2005. 
Later that year, the mother gave birth to a child.  Paternity was subsequently
established.406  The mother and the father’s relationship was turbulent, and they
eventually separated. 

The mother and father began to disagree on various custody and parenting
time issues. The mother filed a petition to establish child support and a parenting
time schedule.407  As part of the trial court’s review of the matter, the trial court
ordered the parties to participate in parenting time coordination with an appointed
Level II Parent Coordinator.408  The trial court also ordered a parenting time
schedule and child support order.  The mother appealed.

On appeal, the mother argued that the appointment of the parenting
coordinator was an abuse of discretion because neither party requested or agreed
to such appointment.409  On review, the court of appeals noted that the mother and
the father clearly had a difficult time communicating and working through

398. Id. at 381, 384.
399. Id. at 384.
400. Id. at 387.
401. Id.
402. Id. at 388.
403. Id.  Judge Robb filed a lengthy dissent, believing the parents’ reluctance to cooperate was

not a sufficient basis to modify custody.  Id. at 390-93 (Robb, J., dissenting).
404. 936 N.E.2d 1270 (Ind. Ct. App. 2010), trans. denied, 950 N.E.2d 1210 (Ind. 2011).
405. Id. at 1271.
406. Id.
407. Id.
408. Id. at 1272.
409. Id. at 1274.



2012] FAMILY AND MATRIMONIAL LAW 1219

parenting time issues.410  The court also noted that, when the trial court
announced its intention of appointing a parenting coordinator, the mother
responded, “that would be great.”411  Thus, the court of appeals concluded that in
light of the evidence and the spirit of the Guidelines, the trial court did not err in
its appointment.412  

V. ADOPTIONS

Issues related to adoption occasionally arise in Indiana family law.  The
following section reviews several such noteworthy cases from the survey period.

A.  Limits on Statutory Law Circumventing Adoption Law
In M.S. v. C.S.,413 the Indiana Court of Appeals considered whether Indiana

Code section 31-17-2-3, which, on its face, broadly permits any parent or non-
parent to initiate proceedings to determine the custody of a child, may circumvent
Indiana’s more restrictive adoption statute. 

In M.S., the parties were involved in a same sex relationship.  The biological
mother was artificially inseminated and subsequently had a child.414  After
petitioning the trial court in 2007, the court awarded joint legal custody to the
couple and parenting time to the partner.  The relationship between the couple
ended in 2009 and soon after, the trial court, sua sponte, voided its 2007 order.415 
The partner appealed, arguing the order was valid.

On review, the court of appeals noted that Indiana Code section 31-17-2-3
does broadly permit the initiation of a custody determination by either “a parent”
or “a person other than a parent.”416  But, the court of appeals concluded that the
Indiana General Assembly could not have intended this statutory provision to be
used to establish joint custody between a parent and any non-parent, because
doing so would circumvent the procedural safeguards set forth in the adoption
statutes.417  The court further explained that, because the trial court lacked
authority to issue the 2007 order, it was void and not merely voidable.418 

The partner argued that, even in the absence of the 2007 order, she was
nevertheless entitled to parenting time with the child.419  However, the Indiana
Court of Appeals refused to consider whether the partner was a legal parent of the

410. Id.
411. Id. (citation omitted).
412. Id.
413. 938 N.E.2d 278 (Ind. Ct. App. 2010).
414. Id. at 281.
415. Id.
416. Id. at 282 (quoting IND. CODE § 31-17-2-3 (2011)).
417. Id. at 282-83.  The court specifically noted the procedural safeguard requiring consent

of the natural parent.  Id. (citing IND. CODE § 31-19-9-1(a)(2) (2011)).
418. Id. at 284.
419. Id. at 285.



1220 INDIANA LAW REVIEW [Vol. 45:1183

child because she failed to raise that argument before the trial court.420  The
partner also argued that she was entitled to third party visitation with the child.421 
The court determined that even if there was a basis for third party visitation, the
partner was not entitled to it because such visitation would not serve the best
interests of the child.422  The trial court’s decision was affirmed.423 

B.  Consent to Adoption
Consent to adoption is required absent a showing of a failure to pay support. 

In In re Adoption of M.B.,424 the Indiana Court of Appeals reviewed the trial
court’s denial of a petition to adopt a child without the parent’s consent.425 

The mother and the father became engaged approximately two months after
the birth of the child, but never married.426  During the first five months of the
child’s life, the mother would leave the child at the father’s home when she went
to work to avoid the cost of daycare.  After that initial period, the mother
unilaterally decided to take the child to daycare.427  The mother then allowed the
father to see the child one day a week.  Shortly thereafter, the mother began
seeing stepfather and they were married approximately one year later.428 

Since the child’s birth, the father was intermittently employed, generally in
minimum wage or low-paying jobs.429  He offered to arrange child support
payments, but the mother refused the offer.  The father exercised visitation
informally one day per week until July 2009, when the mother refused to allow
the father to see the child from that point forward.430  In September 2009, the
father filed a petition to establish paternity.  The stepfather filed a petition to
adopt the child and a motion to proceed with the adoption without the consent of
the father in October of 2009.431   Relying on Indiana Code section 31-19-9-8, the
court determined that the stepfather had not met his burden by “clear, cogent, and
indubitable evidence” that he could proceed forward without the consent of the
father.432 

The court of appeals examined the language of Indiana Code section 31-19-9-
8, which provides that the stepfather could proceed without the father’s consent

420. Id.
421. Id. at 285-86.
422. Id. at 287.  This determination was supported by trial testimony regarding a violent

alteration between the parties that was witnessed by the child.  Id.
423. Id.
424. 944 N.E.2d 73 (Ind. Ct. App. 2011).
425. Id. at 74.
426. Id.
427. Id.
428. Id.
429. Id. at 75.
430. Id.
431. Id.
432. Id. at 76.



2012] FAMILY AND MATRIMONIAL LAW 1221

if the father had “knowingly fail[ed] to provide for the care and support of the
child when able to do so as required by law or judicial decree.”433  The court
found that even though the father had limited income and there was no formal
support order, he had a common law duty to provide support.434  However, the
trial court correctly determined that the father’s provision of childcare constituted
support.435  The trial court’s denial of stepfather’s adoption petition was
affirmed.436 

Additionally, consent to adoption is not required upon evidence of serious
drug addiction and knowing and intentional failure to pay child support.  For
example, in B.F. v. L.F. (In re Adoption of K.F.),437 the Indiana Court of Appeals
considered whether the trial court correctly determined that the mother’s consent
to the adoption of her children was not required where the mother did not pay
child support and had a drug addiction.438

The parties divorced in 2002.  The father was awarded custody of their two
children; the mother was ordered to pay support.439  The mother battled a serious
drug addiction, and she paid little child support to the father.  By 2009, her
arrearage was over $14,000.440  The mother’s parenting time was required to be
supervised, and the mother was subject to drug screens that she repeatedly failed. 
The mother was arrested for dealing heroin in 2009.441 

The father remarried the stepmother in 2006.442  In 2008, the stepmother filed
a petition to adopt the children.  Typically, a natural parent’s consent is required
before a third party may adopt a child.  However, by statute, such consent is not
required under various circumstances, including:  1) when the parent knowingly
fails to provide for the care and support of the child as required by law or decree;
or 2) it is proven by clear and convincing evidence that the parent is unfit, and
that the best interests of the child would be served if adoption can proceed
without the parent’s consent.443 

After a hearing, the trial court determined that these exceptions had been
proven, and the adoption of the children by the stepmother was approved without
the mother’s consent.444  The mother appealed. 

The mother disputed the lack of support exception finding, saying she had
struggled to maintain employment since the divorce.445  The court of appeals

433. Id. (quoting IND. CODE § 31-19-9-8(a)(2) (2011)).
434. Id. at 77.
435. Id.
436. Id. at 78.
437. 935 N.E.2d 282 (Ind. Ct. App. 2010), trans. denied, 950 N.E.2d 1196 (Ind. 2011).
438. Id. at 283.
439. Id.
440. Id.
441. Id.
442. Id.
443. Id. at 286 (citing IND. CODE § 31-19-9-8 (2011)).
444. Id. at 287.
445. Id. at 288.



1222 INDIANA LAW REVIEW [Vol. 45:1183

rejected the mother’s argument, finding it dispositive that, on three occasions
since the decree, the mother had signed agreed entries that recited her non-
payment of support was knowing and willing.446  

As to the issue of the mother’s unfitness, the court of appeals reviewed the
significant evidence of failed drug screens, and evidence of the mother using
cocaine, heroin, Percocet, and assorted opiates.447  “The evidence is sufficient to
prove that [the m]other is unfit to be a parent.”448  Since the record supported the
trial court’s conclusion that the mother had failed to support the children, and that
the mother was an unfit parent, the trial court’s approval of the stepmother’s
adoption, without the mother’s consent, was affirmed.449 

C.  Granting Adoption Before the Requisite Objection Period Has Run
In D.H. v. J.H., (In re L.C.E.),450 the Indiana Court of Appeals considered

whether the trial court erred when it granted an adoption petition without giving
the custodial stepfather of the child thirty days, per statute, to file an objection to
the adoption petition.  The stepfather and mother married in 1999.451  At that time,
the mother had a prior born child (“child”) for whom paternity had not been
established.452  During the parties’ marriage, two more children were born.  The
stepfather and the mother divorced in 2007.453  Under their settlement agreement
incorporated into the decree of the Johnson County Circuit Court, custody,
parenting time, and support were determined as to the other children; however,
the decree was silent as to the child. 

In 2009, the stepfather filed an emergency petition for custody in the divorce
court and was granted joint legal custody and primary physical custody of all of
the children, including the child.454  In 2010, the mother’s father (“grandfather”)
filed a petition to adopt the child in the Lawrence County Circuit Court.  Twenty-
six days later, the court granted the adoption petition.455  Three days after that, but
still within thirty days of the filing of the grandfather’s petition, the stepfather
filed his objection to the adoption proceedings.456  The stepfather appealed.457 

The court of appeals concluded that the stepfather had standing because of

446. Id.
447. Id. at 289.
448. Id.
449. Id.
450. 940 N.E.2d 1224 (Ind. Ct. App. 2011).
451. Id. at 1225.
452. Id.  The opinion suggests an open question as to whether the child was the stepfather’s

biological child.
453. Id.
454. Id.
455. Id. at 1226.
456. Id.
457. Id.



2012] FAMILY AND MATRIMONIAL LAW 1223

the 2009 court order giving him joint legal custody of the child.458  The court also
noted that, by statute, such an objection by a party with standing must be filed
within thirty days of service of the adoption petition.459  Here, the stepfather
timely filed his objection.460  However, the Lawrence County Circuit Court had
already granted the adoption petition.461  In reversing the trial court’s granting of
the grandfather’s adoption petition, the court of appeals noted that the trial court
“erred when it failed to consider [the s]tepfather’s objection . . . because [the
s]tepfather was [the child’s] legal custodian pursuant to the Johnson County
order.”462

D.  Post Adoption Visitation Rights for Biological Parents
In J.S. v. J.D.,463 the Indiana Court of Appeals considered whether:  1)

Indiana Code section 31-19-16-2 is the exclusive means for a biological parent,
who has consented to adoption, to petition for and assert visitation rights; and 2)
the trial court lacks the power to grant visitation rights to birth parents outside of
this statute.464

The child was born to the biological father and the biological mother in
2002.465  The parents were still in high school and the child had significant health
problems.  The mother’s parents adopted the child shortly thereafter, with the
consent of both biological parents.466  The father visited the child regularly and
was referred to as “dad” by the child.  The mother and father were married and
eventually moved in together with the child.467  They had a second child during
this period.  They eventually filed a petition to adopt the child, to which the
adoptive parents (grandparents) consented, but this process was never finalized.468

In 2008, the mother filed for dissolution from the father.469  The child was not
named in the petition.  During the pendency of the dissolution, the father
exercised regular visitation with both children.470  The marriage was eventually
dissolved and the settlement agreement made no mention of visitation with the
child (but did provide for visitation with the second child).471  The father still

458. Id. at 1228.
459. Id.
460. Id.
461. Id.
462. Id.
463. 941 N.E.2d 1107 (Ind. Ct. App. 2011), trans. denied, 2011 Ind. LEXIS 478 (Ind. June

2, 2011).
464. Id. at 1108.
465. Id.
466. Id.
467. Id.
468. Id.
469. Id.
470. Id.
471. Id. at 1109.



1224 INDIANA LAW REVIEW [Vol. 45:1183

continued visitation until the mother remarried and visitation with the child was
terminated.  The father continued to exercise visitation with the second child.472 

The father filed a petition to establish visitation for the child in the dissolution
court and moved to join necessary parties, including the child’s adoptive
parents.473  The trial court, citing Collins v. Gailbreath,474 granted the visitation
petition on the grounds that the father “qualified as a third-party nonparent
custodian” whose court-ordered visitation was in the child’s best interests.475  The
trial court stated its judgment did not affect the adoption decree.476  The mother
and the adoptive parents appealed.477 

Relying on In re Visitation of A.R.,478 the court of appeals concluded that
Indiana Code section 31-19-16-2 was the exclusive means for seeking visitation
privileges.479  The court distinguished Collins because the father was a birth
parent, not a third-party nonparent.480  The judgment of the trial court was
reversed and remanded with instructions to vacate the visitation order.481 

E.  Jurisdiction to Issue Conclusions Regarding an Adoption Petition
In Devlin v. Peyton,482 the Indiana Court of Appeals considered whether the

dissolution court had proper jurisdiction to issue conclusions regarding an
adoption petition filed in a different jurisdiction, when the adoption court denied
a motion to transfer to the dissolution court.483  The court of appeals determined
that because the adoption was still pending in the adoption court, the dissolution
court did not have jurisdiction over the adoption.484  Because the adoption court
denied the father’s motion to transfer to the dissolution court, the adoption action
remained in the adoption court.485  The father’s only recourse was an interlocutory
appeal.486  Expressing no opinion on the merits, the court vacated the dissolution
court’s conclusions regarding the adoption petition, and affirmed that court’s
conclusions on the issue of parenting time, noting that the mother failed to

472. Id.
473. Id.
474. 403 N.E.2d 921 (Ind. Ct. App. 1980).
475. J.S., 941 N.E.2d at 1109.
476. Id.
477. Id.
478. 723 N.E.2d 476, 479 (Ind. Ct. App. 2000).
479. J.S., 941 N.E.2d at 1110.
480. Id. at 1111.
481. Id.  Judge Crone concurred in the result, by separate opinion.  Id. at 1111-13 (Crone, J.,

concurring).
482. 946 N.E.2d 605 (Ind. Ct. App. 2011), reh’g denied, 2011 Ind. App. LEXIS 988 (May 24,

2011).
483. Id. at 606.
484. Id. at 607.
485. Id.
486. Id.



2012] FAMILY AND MATRIMONIAL LAW 1225

challenge that issue.487

CONCLUSION

This Article reviews developments in Indiana’s family and matrimonial law
through the examination of many notable cases.  These decisions will
undoubtedly impact future cases involving dissolution of marriage, child custody,
support, relocation, paternity, and adoption.

487. Id. at 607-08.