Indiana Law Review


Recent Developments: Indiana Family Law

Joseph W. Ruppert"
JONI L. Sedberry**

Introduction

During the survey period, at least fifty Indiana appellate decisions were

published involving the broad topic known as Family Law.^ This Article is
primarily limited to a review of Indiana Appellate Court decisions during the

survey period which advance, clarify, or raise further questions regarding the

State's body offamily law, particularly commonly recognized subjects including
dissolution of marriage, paternity, child custody, support and adoption. A
significant piece of legislation regarding parental relocation in child custody

matters was enacted during the survey period and will also be discussed.

I. Dissolution OF Marriage

The following discussion considers some noteworthy cases involving the
topics of property distribution, spousal maintenance, marital agreements and

other matters in the context of dissolution of marriage.

A. Property Distribution

1. Marital Property Issues.—The first of the three primary questions
involved in marital asset distribution concerns the definition of marital property.

* Associate, Ruppert & Schaefer, P.C. B.A. 1973, Purdue University; J.D., with
distinction, 1979, St. Mary's University School of Law, San Antonio Texas.

** Associate, Ruppert & Schaefer, P.C. A.S. 2000, Indiana University; B.S., with
distinction, 2002, Indiana University; J.D., Family Law Concentration, Valparaiso University
School of Law, Valparaiso, Indiana. The authors also wish to acknowledge Jake McKinney for his

assistance in compiling the appellate decisions used in this Survey.

1 . Ten articles of Title 3 1 of the Indiana Code are specifically titled family law. IND. CODE

§§ 31-1 1 to -20 (2004). These articles cover marriage, domestic relations courts, the parent-child

relationship, establishment of paternity, dissolution of marriage and legal separation, support of

children and other dependents, custody and visitation rights, the Uniform Interstate Family Support

Act, adoption and human reproduction. Title 31 also contains an article of general provisions as

well as an article consisting of 149 sections of definitions pertaining to both family and juvenile

law. An additional eleven articles ofTitle 3 1 are specifically referred to as "juvenile law." See iND.

Code § 31-9-2-72 (2004) ("'Juvenile law' refers to [Indiana Code section] 31-30 to 31-40.").

Also, every legal proceeding in Indiana between parents involving child support or visitation

with their children is governed by the Indiana Supreme Court' s Child Support Rules and Guidelines

and Parenting Time Guidelines. Throughout an additional fifteen other titles of the Indiana Code

are provisions governing criminal offenses against children and the family, children's protection

services, marriage and family therapists, and trust and fiduciaries. Federal legislation involving

taxation, bankruptcy and retirement benefits can be a consideration in virtually any property

settlement. Other federal legislation impacts Native American adoptions, parental kidnapping and

state enforcement of child support obligations.



892 INDIANA LAW REVIEW [Vol. 40:891

The other two questions involve the valuation of the property and how it is to be
distributed. Indiana courts have referred to asset distribution as a two-step

process, involving a determination of the marital estate and its division.^

However, the legal process ofmarital asset distribution is more involved than this
may indicate. Determining marital property sometimes involves a determination
of whether something is in fact property and, if so, whether it is a marital asset.

Many cases involving valuation of assets attest to the significance of that
question.

The marital property and valuation questions necessarily affect the final
question—distribution.^ "Indiana subscribes to the 'one pot' theory of marital
possessions.'"^ This "one pot" theory has been defined as meaning that the

marital estate includes all the property of the parties; whether owned by either
spouse prior to marriage, acquired by either spouse in his/her right after the

marriage and prior to final separation of the parties, or acquired by their joint

efforts.^ Thus, property owned by either spouse before the marriage is included
in the marital estate and subject to division and distribution.^ The "one pot"
theory has been held to specifically prohibit the exclusion of any asset from the

marital estate^

In other words, the law requires that all property owned by the parties before
separation is to be considered part of the marital estate, and, with certain limited

exceptions, this "one pot" theory specifically prohibits the exclusion of any asset

from the scope of the trial court's power to divide and award in a dissolution of
marriage action.^ Under the "one pot" theory only property acquired by a spouse
after the final separation date is excluded from the marital estate.^

With the above in mind, several cases during the survey period addressed the

issue of whether property was includable in the marital estate.

a. Social Security Disability Benefits.—In Severs v. Severs, ^^ the Indiana
Supreme Court addressed whether Social Security Disability Income is a marital

asset subject to equitable distribution. In Severs, the Indiana Court of Appeals

2. Gard v. Gard, 825 N.E.2d 907, 9 1 1 (Ind. Ct. App. 2005) (citing Thompson v. Thompson,

811 N.E.2d 888, 912-13 (Ind. Ct. App. 2004)); see generally Robert J. Levy, Introduction to

Divorce-Property Issues, 23 Fam. L.Q. 147 (1989).

3. See generally Levy, supra note 2.

4. Perkins v. Harding, 836 N.E.2d 295, 299 (Ind. Ct. App. 2005) (internal citations omitted).

5. Neffle v. Neffle, 483 N.E.2d 767, 769 (Ind. Ct. App. 1985) (citing Ind. Code § 31-15-7-

4(a) (2004)).

6. Fobar v. Vonderahe, 771 N.E.2d 57, 58 (Ind. 2002).

7. Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004). For a discussion

of Thompson, see Michael G. Ruppert &Joseph W. Ruppert, RecentDevelopments: Indiana Family
Law, 38 Ind. L. Rev. 1085, 1089 (2005).

8. Ind. Code § 31-15-7-4(a) (2004); Maxwell v. Maxwell, 850 N.E.2d 969, 973 (Ind. Ct.

App. 2006) (quoting iND. CODE § 31-15-7-4(a) (2004)).

9. Maxwe//, 850 N.E.2d at 973.

10. 837 N.E.2d 498 (Ind. 2005).



2007] FAMILY LAW 893

had reversed'' the trial court's determination that Husband's Social Security

Disability payments were marital property.'^ The trial court had awarded Wife
forty percent of Husband's future Social Security Disability payments.'^ In

granting transfer, the supreme court agreed with the decision of the court of

appeals and reversed the trial court's order.
'"^

Prior to Severs, the Indiana appellate courts had addressed other issues of

inclusion in the marital pot such as Worker's Compensation,'^ disability

insurance under an employer sponsored policy that was purchased with marital

assets'^ and disability income benefits where no marital assets were used to

contribute to the purchase of the benefits.'^ However, no case in Indiana had

specifically addressed inclusion of Social Security Disability benefits in the

marital estate until the court of appeals decided Severs. In Indiana, the

presumption is that all "assets acquired before final separation by either party are

property subject to equal division."'^ Property is defined as all the assets of

either party or both parties, including:

(1) a present right to withdraw pension or retirement benefits;

(2) the right to receive pension or retirement benefits that are not

forfeited upon termination of employment or that are vested (as
defined in section 411 of the Internal Revenue Code) but that are
payable after the dissolution of marriage; and

(3) the right to receive the disposable retired or retainer pay "as defined

in 10 U.S.C. 1408(a)" acquired during a marriage that is or may be
payable after the dissolution of marriage.'^

While "future earnings" are not considered part of the marital estate for purposes

of property division a "future income stream":

maybe a marital asset to the extent that either marital assets were used
to acquire the future income or the income is future compensation for

past services, as opposed to replacement for lost earning capacity due to

disability. But if both factors are absent a disability income stream is not

11. Severs v. Severs, 813 N.E.2d 812, 813 (Ind. Ct. App. 2004).

12. For a discussion ofthe court of appeals decision in Severs, see Ruppert & Ruppert, supra
note 7, at 1087.

13. Severs, 837 N.E.2d at 499.

14. Id.

15. Leisure v. Leisure, 605 N.E.2d 755, 760 (Ind. 1993).

16. Gnerlich v. Gnerlich, 538 N.E.2d 285 (Ind. Ct. App. 1989).

17. Antonacopulos v. Antonacopulos, 753 N.E.2d 759, 761 (Ind. Ct. App. 2001); Jendreas

V. Jendreas, 664 N.E.2d 367, 371 (Ind. Ct. App. 1996).

18. iND. Code § 31-15-7-5 (2004); Severs, 837 N.E.2d at 499. As the court stated, "[t]he

party who seeks to rebut the presumption . . . bears the burden of demonstrating that the statutory

presumption should not apply." Severs, 837 N.E.2d at 499 (quoting Beckley v. Beckley, 822

N.E.2d 158, 162-63 (Ind. 2005)).

19. Ind. Code § 31-9-2-98(b) (2004).



894 INDIANA LAW REVIEW [Vol. 40:891

a marital asset. . . }^

Thus, the supreme court had determined that Worker's Compensation

benefits intended to compensate for loss of future earnings were not marital

property^' nor were employer or union provided disability benefits intended to

compensate for loss of future earning which required no employee contribution

and thus no depletion of the marital estate.^^ However, Social Security Disability

benefits are funded by a totally involuntary payroll tax some of which is paid by
the employee.^^ Prior to Severs the court of appeals decided Lawson v. Hayderi^^
in which the court had included a part of Husband's railroad retirement annuity

in the marital estate because payroll taxes were used during the marriage to fund

the annuity.^^ The court of appeals in Severs disagreed with the determination
in Lawson—that payroll taxes constituted the use of marital assets^^—thus
inviting the supreme court's grant of transfer and its decision in this case.^^

In its opinion, the supreme court noted that the court of appeals had correctly

looked to federal authority to determine the nature of Social Security Disability

benefits and their relation to payroll taxes.^^ Social Security disability benefits,

because they are funded by an involuntary tax do not represent a depletion of the

marital estate or property that is includable in the marital pot.^^

In dicta, the supreme court, in what amounted to an announcement of its

position on the inclusion of Social Security benefits of any kind in the marital

estate, stated that "any assignment or division of Social Security Benefits to

satisfy a marital property settlement under Indiana law is barred by 42 U.S.C.
4Q'7»3o

b. Worker's compensation insurance benefits.—As noted earlier, the
inclusion of worker's compensation benefits in the marital estate was addressed

20. Severs, 837 N.E.2d at 500.

21. Leisure v. Leisure, 605 N.E.2d 755, 759 (Ind. 1993).

22. Antonacopulos, 753 N.E.2d at 761-62 (employer provided disability benefits with no

employee contribution); Jendreas, 664 N.E.2d at 371 (union pension disability benefits with no

employee contribution).

23. Severs, 813 N.E.2d at 814 (Social Security deduction amounts to taxes imposed on all

covered employees by the federal government and is wholly involuntary).

24. 786 N.E.2d 756 (Ind. Ct. App. 2003).

25. Id. at 762-63.

26. 5^v^r5, 813 N.E.2d at 814-15.

27. 5£v^r5, 837N.E.2dat501.

28. Id. at 500 (citing Flemming v. Nestor, 363 U.S. 603, 610 (I960)) (stating the interest of

an employee covered by Social Security is a non-contractual interest and cannot be compared to

that of an annuity whose rights are based on his contractual premium payment).

29. Id.

30. Id. at 501 (citing Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ("This provision of

federal law prevents state courts from assigning of social security benefits in a property division

judgment.")).



2007] FAMILY LAW 895

by the supreme court in Leisure v. Leisure?^ Generally speaking, worker's
compensation benefits received after the date of separation are not includable in

the marital estate.^^ However, worker's compensation benefits received during

the marriage are included in the marital estate if those benefits were to replace

earnings prior to the date of separation.
^^

During the survey period the court of appeals did have the occasion to

address the issue of whether certain worker's compensation benefits received

during the marriage were to be included in the marital estate.

In the case of Shannon v. Shannon,^^ Husband "received a lump sum
worker's compensation payment in the amount of $48,000."^^ Subsequently,
"Wife filed a petition for dissolution of marriage."^^ To equalize the estate, the
court awarded wife $10,000 of Husband's worker's compensation award.

Husband appealed.^^ In affirming the trial court, the court of appeals restated the
holdings of Leisure that worker's compensation benefits received during the

marriage which represent lost income for a period prior to the date of separation
were subject to inclusion in the marital estate, but the benefits for loss of future

earnings were not.^^ In Shannon, the court reasoned that because Husband was
injured in October 2000 and the date of separation occurred in January 2003, the
lump sum award would include part of his lost income during the marriage in
addition to loss of future income.^^ "Husband did not present any evidence
regarding how much of the $48,000 award" was apportioned to lost income prior
to the date of separation and how much represented loss of future earnings."^^

Because this evidence was not presented. Husband was unable to "overcome the
strong presumption that the trial court's disposition of marital property [was]

correct.'"^^

In the future, it would seem that a party seeking to exclude part of a lump
sum Worker's Compensation settlement from the marital estate would need to
present evidence of the portion of the lump sum allotted to past earnings and the
portion allotted to future loss of earning capacity.

c. Inclusion ofassets acquired after the Date ofSeparation.—The case of
Deckard v. Deckard^^ involved a question of whether money that Husband had
withdrawn from a joint line of credit subsequent to the date of separation should

be included in the marital estate. After Wife had filed the petition for dissolution

31. 605 N.E.2d 755 (Ind. 1993).

32. /J. at 759.

33. Id.

34. 847 N.E.2d 203 (Ind. Ct. App. 2006).

35. Id. at 204.

36. Id.

37. Mat 205.
38. Id.

39. Id.

40. Id.

41. Mat 206.
42. 841 N.E.2d 194 (Ind. Ct. App. 2006).



896 INDIANA LAW REVffiW [Vol. 40:891

ofmarriage and before any preliminary hearing could be held, Husband withdrew
$4750 "from the parties' joint line of credit to purchase a car.'"*^ The trial court
then included that amount in Husband's assets."^"^ Husband appealed arguing that
the trial court had abused its discretion in awarding him the amount that he had
withdrawn from the parties' line of credit."^^ Pursuant to Indiana Code sections
3 1 - 15-7-4 and 3 1 -9-2-6, the marital estate closes when the petition for dissolution
is filed.'*^ Husband withdrew the money from the line of credit and purchased the
car subsequent to the date that Wife filed the dissolution petition but prior to the
entry of any preliminary order.'*^ Therefore, the asset was acquired after the
marital estate had closed. As such, it was an abuse of the trial court's discretion
to include it in the marital estate."^^

d. Antenuptial agreements.—Ofcourse, one way that an individual can make
certain that property brought into the marriage will be "separate property" is

through a valid "prenuptial" or "antenuptial agreement.'"^^ "Antenuptial

agreements" have been defined in Indiana as "legal contracts by which parties

entering into a marriage attempt to settle their respective interests in the property

of the other during the course of the marriage and upon its termination."^^

The court's in Indiana have held that antenuptial agreements are construed
according to the principles applicable to the construction of contracts. ^^ The
intent of the parties as expressed in the language of the antenuptial agreement is

the court's starting point in interpreting the antenuptial agreement.^^

In McCord v. McCord^"^ the parties entered into an antenuptial agreement
whereby Husband sought to keep as his separate property his retirement savings
plan, whole life insurance policy, and the increase in value that said items might

experience between the date of the antenuptial agreement and, in the event of

divorce, the date of the parties' separation. The parties did in fact separate, and

43. Mat 201.
44. Id.

45

.

Id. It should be noted that the parties did not have the corresponding liability for this line

ofcredit withdrawal because both parties had agreed to file for Chapter 7 Bankruptcy. As the court

had stated earlier: "[T]he trial court may not divide assets which do not exist just as it may not

divide liabilities which do not exist." Id. (quoting In re Marriage of Lay, 512 N.E.2d 1 120, 1 123-

24 (Ind. Ct. App. 1987)).

46. Id.

47. Id.

48. Id.

49. McCord v. McCord, 852 N.E.2d 35, 42 (Ind. Ct. App. 2006).

51. Magee v. Garry-Magee, 833 N.E.2d 1083, 1087 (Ind. Ct. App. 2005). For a discussion

ofMagee specifically and antenuptial agreements in general, see Joseph W. Ruppert & Michael G.
Ruppert, Recent Developments: Indiana Family Law, 39 iND. L. REV. 995, 999 (2006).

52. See generally McCord, 852 N.E.2d at 35; Magee, 833 N.E.2d at 1083.

53. Schmidtv.Schmidt,812N.E.2d 1074, 1080 (Ind. Ct. App. 2004). For review ofSchmidt

specifically and the interpretation ofthe language ofthe contract in general, see Ruppert & Ruppert,
supra note 7, at 1088-89.

54. McCord, 852 N.E.2d at 35.



2007] FAMILY LAW 897

the trial court dissolved the marriage and divided the marital property. In doing

so the trial court failed to set over the appreciated values of Husband's retirement

savings plan and whole life insurance policy to him in accordance with the
antenuptial agreement.^^ Husband appealed, contending that the failure to set
these appreciated values over to him was error.^^ The court of appeals agreed.
Relying upon Magee and Schmidt, the court analyzed the parties' antenuptial
agreement. The court found that the antenuptial agreement had clearly intended
that Husband's retirement plan, life insurance, and any appreciation in value

were to be and remain his separate property.^^ The court remanded to the trial
court with instructions to enter a new property division.^^

2. Property Valuation Issues.—It is a well-established rule of law in Indiana
that a trial court may select a valuation date for marital property at "any time
between the date a petition for dissolution is filed and the date a decree of

dissolution is entered."^^ A continuing problem occurs when the parties'
settlement agreement purports to divide the proceeds of a pension or retirement

account pursuant to a qualified domestic relations order ("QDRO").^^ There is
often a delay between the date of the dissolution decree and the processing of the
QDRO by the financial institution.^^ During this gap the retirement plan can, for
many reasons, increase or decrease in value. So the question becomes: how is
the gain or loss that occurs after the valuation date but before the QDRO
becomes effective to be treated? This was the issue in Shorter v. Shorter.^^ In
Shorter, Husband and Wife agreed that Wife would be awarded one-half of the
value ofHusband's 401 (k) as of the date of approval of the settlement agreement.
As of the date the settlement agreement was approved by the court the value of
Wife's share was approximately $80,000.^^ Due to delays beyond the control of
either party, by the time the QDRO had been approved and submitted to the
financial institution. Wife's share had increased in value in excess of $10,000.^"^

55. Id. at 42.

56. Id.

57. /^. at43.

58. Id.

59. Magee v. Garry-Magee, 833 N.E.2d 1083, 1087 (Ind. Ct. App. 2005) (citing Reese v.

Reese, 671 N.E.2d 187, 191 (Ind. Ct. App. 1996)). The date of the filing for dissolution of

marriage is the statutory "final separation date." See iND. CODE § 31-9-2-46 (2004).
60. When dissolving a marriage in Indiana, the parties are free to draft their own settlement

agreement which is contractual in nature and becomes binding on the parties when the court merges

and incorporates the agreement into the divorce decree. Shorter v. Shorter, 851 N.E.2d 378, 383

(Ind. Ct. App. 2006). These agreements are construed according to rules applicable to the

construction of contracts, which means that "unless the terms of the contract are ambiguous, they

will be given their plain and ordinary meaning." Id.

61. See generally Shorter, 851 N.E.2d at 378; Beike v. Beike, 805 N.E.2d 1265 (Ind. Ct.

App. 2004); Niccum v. Niccum, 734 N.E.2d 637 (Ind. Ct. App. 2000).

62. 851 N.E.2d 378 (Ind. Ct. App. 2006).

63. Id. at 380.

64. Id. at 382.



898 INDIANA LAW REVIEW [Vol. 40:891

Husband sought clarification from the trial court regarding this increase in value.
The trial court determined that the ex-wife was not entitled to the increase that
had accrued after the valuation date but before the QDRO creating her account
became effective.^^ Wife appealed. In reversing the trial court, the court of
appeals discussed the prior decisions ofNiccum v. Niccum^^ and Beike v. Beike^^
which both involved substantially similar fact situations. In all three cases none

of the settlement agreements had contained any express language regarding the

rewards of growth or risk of loss. In Niccum the court determined that:

Investment plans inherently include both the rewards of growth, and the

risk of losses. Thus, absent express language stating otherwise, the

settlement agreement of the parties implicitly contemplated both parties

sharing all of the rewards and risks associated with an investment plan

.... The valuation date merely provides a mutually agreed upon base
amount to [w]hich any growth is added or loss is subtracted, and bars
[Wife] from benefiting from any contributions made by [Husband] after
the valuation date.^^

This rational was followed by the court in Beike, and in Shorter the court

defined the rule as this: "The principle that emerged from Niccum and has been
applied since is that, absent express language stating otherwise, a settlement

agreement dividing a pension plan implicitly contemplates that both parties will

share all of the rewards and risks associated with an investment plan."^^

In reversing the trial court, the court of appeals noted that just as in Niccum
and Beike, the Shorter settlement agreement did not contain any express language

stating how gains or losses were to be divided.^^ Of particular importance,
however, to the practitioner is a sort of warning voiced by the court.

We note especially that Niccum was decided well before the [Shorters]
entered into the instant settlement agreement and thereby put Indiana

citizens on notice that provisions of that sort would be interpreted in this

manner. In the second place, it would have been easy enough to draft a

provision utilizing language that unambiguously expressed an intention

to award [Wife] an amount of cash in sum certain, as opposed to a
portion of a pension plan. But, the parties did not do this.^^

It would seem that the court is also saying that practitioners now have been put
on notice and should take care in drafting settlement agreements involving

pension benefits effectuated by a QDRO.

65. Id.

66. Niccum, 734 N.E.2d at 637.

67. Beike, 805 N.E.2d at 1265. For an analysis of Beike, see Ruppert & Ruppert, supra note
7, at 1090.

68. Niccum, 734 N.E.2d at 640.

69. Shorter, 851 N.E.2d at 386 (citation omitted) (emphasis added).

70. Id.

71. Id.



2007] FAMILY LAW 899

The case ofNoweIs v. Nowels,^^ which was decided during the survey period,
provides a good example of the difficulty that a court faces when attempting to
value property. In this case the issue was the valuation of Husband's one-half

interest in a business. Each side presented expert testimony giving opinions as

to the value of the business that varied widely from each other and were

calculated on different dates during the dissolution process.^^ In its findings, the

trial court thoroughly analyzed the strengths and weaknesses of each expert's

testimony and the evidence presented and placed a value on Husband's interest

that was between the figures offered by each expert.^"^ Husband challenged the
valuation as arbitrary and unsupported by the evidence.^^ He also contended that
it was erroneous because no expert had valued his interest as of the date of the
final hearing.^^ In rejecting Husband' s claims, the court of appeals reaffirmed the

longstanding rule that "the marital estate is to be closed at the time of the filing

of the petition for dissolution" of marriage but that a "trial court has broad

discretion in determining the date upon which to value marital assets, and may
select any date between the date of filing the petition for dissolution and the date

of the final hearing."^^ In further expounding upon the "broad discretion" of the
trial court, the court of appeals stated:

Additionally, a trial court has broad discretion in ascertaining the value

of property in a dissolution action and its valuation will not be disturbed

absent an abuse of that discretion. The trial court has not abused its
discretion if its decision is supported by sufficient evidence and

reasonable inferences therefrom. Even where the circumstances would
support a different award, we do not substitute our judgment for that of
the trial court.^^

In Nowells, although the trial court had declined to adopt either experts

appraisal in its entirety, the court of appeals determined that the trial court's

valuation was not arbitrary because of its "well-reasoned resolution ofconflicting
evidence."^^ The court concluded by stating that the "trial court was not
obligated to adopt the specific" value assigned by either expert or the specific

valuation date chosen by either expert. ^^ The value placed on the business by the
trial court was within the bounds of the evidence presented and within the trial

72. 836 N.E.2d 481 (Ind. Ct. App. 2005).

73. Mat 484.
74. Id. The court found the value to be as of the date of the final hearing. Id.

75. Id.

76. Id.

11. Id. at 485 (citing Sanjari v. Sanjari, 755 N.E.2d 1 186, 1 192 (Ind. Ct. App. 2001) (marital

estate is to be closed at the time of filing of the petition for dissolution); Wilson v. Wilson, 732

N.E.2d 841, 845 (Ind. Ct. App. 2000) (court may select any valuation date "between the date of

filing the petition for dissolution and the date of final hearing")).

78. Id. (citations omitted).

79. /J. at 486.

80. Id. at 487.



900 INDIANA LAW REVIEW [Vol. 40: 89

1

court's broad discretion.^^

In Nowells the parties presented extensive evidence regarding the value of

the assets and the court was faced with the task of having to resolve
conflicts—sometimes significant—in the evidence. However, the court has an
equally difficult—if not more so—task when the parties present little or no
evidence of the value of the marital assets. This was the task facing the court in
Perkins v. Harding}^ In this case, Wife challenged the order dividing property
on the grounds that it was incomplete and vague.^^ At trial, the parties failed to
testify or present exhibits regarding the values of some of the assets and debts.
As a result, the trial court attempted to evenly divide the property as best it
could.^"^ In affirming the trial court, the court of appeals extensively analyzed the

history of the law in Indiana regarding the burden of establishing values for

property in a dissolution and the risk a party runs when failing to introduce
evidence as to the specific value of the marital property.^^ The court of appeals
pointed out that it had to rest, more than two decades ago, who bears the burden
of introducing specific values of marital property at a dissolution hearing and

what happens when the trial court distributes marital property without specific
evidence of value.^^ Prior to In re Marriage ofChurch, the court of appeals had

taken the position that it was "an abuse of discretion for a trial court to distribute
property without apprising itself of the value of the property."^^ In the Church

case, the court adopted the position that "any party who fail[ed] to introduce
evidence as to the specific value of marital property at the dissolution hearing

[was] estopped from appealing the distribution on the ground of trial court abuse

of its discretion based on that absence of evidence."^^

The court of appeals found that the Perkins ' trial court had not abused its
discretion in dividing the assets and liabilities. Additionally, the trial court

placed the burden of dividing most of the value of assets and debts equally

between the parties and had done the best it could regarding the unvalued assets

and debts. The court stated:

In light of the state of the record before us, we fmd no error attributable
to the court. See, e.g. In Re Marriage ofLarkin, 462 N.E.2d 1338, 1344

81. Id.

82. 836 N.E.2d 295 (Ind. Ct. App. 2005).

83. /J. at 301.

84. Id.

85. Id.

86. Id. at 302. The case referred to by the court was In re Marriage of Church., 424 N.E.2d

1078, 1081-82 (Ind. Ct. App. 1981).

87. Perkins, 836 N.E.2d at 301 (quoting In re Marriage ofChurch, 424 N.E.2d at 108 1-82).

The Church court also pointed out that the law was further complicated by a line ofcases which had

upheld trial court's in the distribution of unvalued property when the property was not unique and

did not "require expertise for evaluation or when the unvalued property [was] clearly of little value

in relation to the entire marital estate." In re Marriage of Church, 424 N.E.2d at 1082.

88. Perkins, 836 N.E.2d at 301 (quoting In re Marriage of Church, 424 N.E.2d at 1081).



2007] FAMILY LAW 901

(Ind. Ct. App. 1984) (finding no abuse of discretion in trial court's

division of assets when parties had failed to provide evidence of the
value of some assets at trial); Showley v. Showley, 454 N.E.2d 1230,
1231 (Ind. Ct. App. 1983) (rejecting Wife's claims "the trial court was
required to sua sponte fill the evidentiary void when the parties failed to
introduce evidence of value").

^^

3. Distribution Issues.—Indiana Code section 31-15-7-5 governs the
distribution of marital property and provides as follows:

The court shall presume that an equal division of the marital property
between the parties is just and reasonable. However, this presumption

may be rebutted by a party who presents relevant evidence, including
evidence concerning the following factors, that an equal division would

not be just and reasonable:

(1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was income
producing.

(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the
disposition of the property is to become effective, including the
desirability of awarding the family residence or the right to

dwell in the family residence for such periods as the court

considers just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the
disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and

(B) a final determination of the property rights of the parties.^^

Indiana Code section 31-15-7-5 has been determined by the Indiana appellate
courts to "require[] the trial court to presume that an equal division of the marital

property is just and reasonable" unless relevant evidence exists to the contrary

and has been received by the court.^^ The case of Nowels v. Nowels^^ decided
during the survey period provides just such an example ofhow the trial court can
use Indiana Code section 31-15-7-5 to support an unequal division of marital
property.^^ In Nowels, Wife suffered from muscular dystrophy with no
expectation that she would be able to acquire employment in the future. ^"^ Wife

89. Id. at 302.

90. Ind. Code § 31-15-7-5 (2004).

91. See Capehart v. Capehart, 705 N.E.2d 533, 536 (Ind. Ct. App. 1999).

92. 836 N.E.2d 481 (Ind. Ct. App. 2005).

93. Ind. Code § 31-15-7-5 (2004).
94. Nowels, 836 N.E.2d at 487.



902 INDIANA LAW REVIEW [Vol. 40: 89

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required constant assistance because she was unable to "lift herself or attend to
her personal needs."^^ The trial court awarded Wife sixty-three percent of the
marital estate and explained the deviation by referring to the fact that Wife was
disabled, could not work, had high medical and personal care expenses and

Husband had "an extraordinarily high earning capability."^^ Husband appealed
arguing that the trial court committed error because Wife did not request an
unequal division of property and Wife "did not present evidence to support a
deviation from the statutorily presumptive equal division."^^ The court of
appeals rejected both of Husband's arguments, determining that the evidentiary

record supported the trial court's explanation for the deviation and the record

reflected sufficient evidence to support the deviation.^^ The court dismissed
Husband's suggestion that the "trial court may not deviate from the statutory
presumption absent a specific request by a party" to do so.^^ There was no legal
authority offered by the Husband to support the proposition that the "trial court
may not deviate from the statutory presumption absent a specific request" to do
so by a party and the court was not inclined to find as such.^^^

An issue that has perplexed practitioners of family law for some time is
whether a spouse' s Public Employee' s Retirement Fund ("PERF") can be divided
pursuant to a QDRO. This issue was dealt with in the case of Everette v.
Everette}^^ In this case, the trial court ordered that Husband's PERF be divided
pursuant to a QDRO as part of the equalization of the marital estate. ^^^ Wife
challenged this on appeal. ^°^ Indiana Code section 5-10.3-8-9(a) provides, in
part, "All benefits, refunds of contributions, and money in the fund are exempt
from levy, sale, garnishment, attachment, or other legal process. . . ."^^"^

Previously, the case of Board of Trustees of Indiana Public Employees
'

Retirement Fund v. Grannan^^^ dealt with the attachment or assignment of PERF
benefits in the context of a dissolution of marriage. ^^^ In Grannan, the trial court

had issued a QDRO and assigned one-half of the Husband's PERF account
balance to the Wife requiring that her "interest in the account be segregated for

accounting purposes, and required PERF to pay directly to the Wife her share of

95. Id.

96. Id.

97. Id.

98. Id

99. Id

100. Mat 487-88.
101. 841N.E.2d210(Ind. Ct. App. 2006).

102. Mat 211.
103. Presumably Wife was seeking an adjustment of trial court's division of the marital estate

so that she would still receive an equal amount of the estate but without the PERF which would be

credited against the Husband's share.

104. IND. Code § 5-10.3-8-9(a) (2005).

105. 578 N.E.2d 371 (Ind. Ct. App. 1991).

106. Mat 375.



2007] FAMILY LAW 903

the benefits" which had been assigned by the QDRO.*°^ In reversing the trial

court, the court in Grannan stated that the "trial court had exceeded its authority

by ordering assignment and attachment" pursuant to a QDRO/^^ The court
stated:

[T]he husband's PERF rights are an asset of the marriage subject to
distribution. The marital dissolution statute offers the trial court two

avenues if such an asset is to be distributed. The statutory language, "by

setting aside to either of the parties a percentage of those payments

either by assignment or in kind at the time of receipt^ offers the trial

court a method of distribution which is not in violation of the PERF
statutes against assignment and attachment. Because the statutes can be

harmoniously construed, we find no supersedure or implied repeal of the
PERF statutes. Thus, we order the trial court to enter a conforming
order.^^^

In Everette, the court of appeals "conclude[d] that the Grannan opinion

[was] in error to the extent that it implie[d] that the PERF benefits themselves
may be assigned in order to achieve distribution of that marital asset."^^^ The
Everette court felt that saying that PERF benefits themselves could be assigned
would be contrary to the PERF statute's prohibition against assignment of
benefits. If "distribution of the PERF benefits [were] to be made in kind, such
distribution would seem to be delayed until actual receipt of the benefits,"^

^^

which depending upon the age of the parties could be a significant number of

years. The appellate court felt that the Grannan opinion seemed to be saying that

Indiana Code section 31-15-7-4,^^^ which authorized "assignment or distribution

in kind was permitted under the PERF statute precluding such assignments."^ ^^

However, because of the language of Indiana Code section 5-10.3-8-9(a) the
Everette court concluded that the Husband's PERF account was "exempt from
levy, sale, garnishment, attachment, or other legal process" including a QDRO.*

^"^

The question then arises, if PERF is exempt from a form of levy, sale,
garnishment, attachment or other legal process including a QDRO, does the
spouse holding the PERF then, in effect, receive a greater share of the marital

107. Everette, 841 N.E.2d at 213 (citing Grannon, 578 N.E.2d at 373).

108. Id. (citing Grannon, 578 N.E.2d at 376).

109. Grannan, 578 N.E.2d at 376. The court was referring to what is now Indiana Code

section 31-15-7-4.

1 10. Everette, 841 N.E.2d at 213.

111. Id.

112. The marital property distribution statute at the time Grannan was decided was codified

as Indiana Code section 31-1-1 1.5-1 1. It is now re-codified at Indiana Code section 31-15-7-4.

The relevant language has remained unchanged.

113. Everette, 84 1 N.E.2d at 2 1 3 (citation omitted). Grannan held that the QDRO in that case
was invalid using the rationale cited earlier in this Article. The Everette court specifically rejected

that rationale. Id.

1 14. Id. at 214 (quoting Ind. Code § 5-10.3-8-9(a) (2005)).



904 INDIANA LAW REVIEW [Vol. 40: 89

1

estate? The Everette court held that its ruling "does not leave the trial court
without recourse to evenly divide the marital estate."' ^^ The court remanded to
the trial court with an instruction that it was "to remove the language from the
dissolution decree granting Wife any interest in Husband's PERF account and
otherwise adjust the decree to ensure that Wife still receives an equal share of the
marital estate."'

'^

B. Spousal Maintenance Issues

A case decided on October 4, 2006''^ was a first, of sorts, for the court of
appeals. In the case of Matzat v. Matzat^^^ the court of appeals reversed an

award of incapacity maintenance to a wife.''^

In Matzat, the trial court awarded Wife incapacity maintenance.'^^ Wife

115. Id. In this case, the parties had other assets that could be set over to the Wife to equalize

the distribution of the estate. Id. Of course, if the one spouse's PERF account is the only

significant asset of the marital estate and could not be equalized by distribution of other marital

assets another remedy would have to be found. Presumably, a court could order that the spouse

holding the PERF pay to the ex-spouse a certain amount of each payment received.

116. Id.

1 17. Technically the period of this survey runs from October 1, 2005 to September 30, 2006.

This case was included because it was of significance and decided so near to the survey period.

118. 854 N.E.2d 918 (Ind. Ct. App. 2006).

1 19. Id. at 919. This case was a first, of sorts, because the court noted:

While our research has not yielded a single, reported case in which this court has

reversed the trial court's grant or denial ofan incapacity maintenance award on the basis

ofevidentiary sufficiency, it has also not produced a case where the evidence supporting

an award was as meager as the one here.

Id. at 920; cf. Frazier v. Frazier, 737 N.E.2d 1220, 1224 (Ind. Ct. App. 2000) (trial court's order

characterizing "judgment as non-dischargeable maintenance or support" was reversed when no

evidence supported a designation); Coster v. Coster, 452 N.E.2d 397, 403 (Ind. Ct. App. 1983)

(because no evidence supported maintenance award, trial court' s order was held to be an installment

payment of "the marital property division").

120. Matzat, 854 N.E.2d at 919. In Indiana, post-decree spousal maintenance may be awarded

by the trial court in a dissolution action where the recipient spouse is physically or mentally

incapacitated so that it impairs his or her ability to support him or herself The court may also

award spousal maintenance if the recipient spouse is the custodial parent of an incapacitated child

which requires the spouse to forego employment, and he or she lacks sufficient property to provided

for his/her needs or for "rehabilitative maintenance" to improve job market ability. iND. CODE §
31-15-7-2 (2004). Concerning "rehabilitative maintenance," Indiana Code section 31-15-7-2(3)

provides:

(3) After considering:

(A) The educational level of each spouse at the time of marriage and at the time the

action is commenced;

(B) whether an interruption in the education, training, or employment of a spouse who

is seeking maintenance occurred during the marriage as a result ofhomemaking or



2007] FAMILY LAW 905

"testified that she was seeking social security benefits" and "that she could no
longer work as a certified nurse because she was unable to lift patients."'^' She
also testified that she could no longer work "in data entry because it required her
to sit for long periods of time."'^^ The court awarded Wife incapacity
maintenance and "COBRA insurance coverage until she beg[an] receiving social
security disability benefits."'^^ Wife presented no medical evidence or testimony

to support her claim of incapacity.
^^"^ Husband filed a timely motion to correct

errors, contending that the award of maintenance was in error and was an abuse
of the trial court' s discretion. ^^^ Subsequent to the filing of the motion to correct

errors, Husband discovered that Wife's social security claim had been denied
and, furthermore, that Wife had not claimed the same disability before the Social

Security Administration as she had claimed at trial. ^^^ The trial court denied
Husband's proffer of evidence from the Social Security Administration, even

though he had presented evidence that the denial letter from social security was
not issued until after the final hearing.

'^^

In reversing the trial court, the court of appeals, citing Augspurger v.

Hudson,^^^ stated "a trial court's decision to award maintenance is purely within

its jurisdiction and we will only reverse if the award is against the logic and
effect of the facts and circumstances of the case."^^^ A maintenance award is to
help provide for a spouse's support and "[t]he essential inquiry is whether the

incapacitated spouse has the ability to support himself or herself."^^° Here, Wife

had presented no medical evidence to support her claim for incapacity. The court
contrasted their holding in this case to that ofPaxton v. Paxton^^^ where the court

had held that "medical testimony was not required to support an award [of

child care responsibilities, or both;

(C) the earning capacity of each spouse, including educational background, training,

employment skills, work experience and length ofpresence in or absence from the

job market; and

(D) the time an expense necessary to acquire sufficient education and training to enable

the spouse seeking maintenance to find appropriate employment;

a court may find that rehabilitative maintenance for the spouse who is seeking

maintenance is necessary in an amount and for a period of time that the court considers

appropriate, but not to exceed three (3) years from the date of the final decree.

IND. Code § 31-15-7-2(3) (2004).

121. Mafzar, 845N.E.2dat919.

122. Id.

123. Id.

UA. Id.

125. Id.

126. Id.

127. /^. at 920.

128. 802 N.E.2d 503, 508 (Ind. Ct. App. 2004).

129. Matzau 854 N.E.2d at 920.

130. Id. (quoting McCormick v. McCormick, 780 N.E.2d 1220, 1224 (Ind. Ct. App. 2003)).

131. 420 N.E.2d 1346, 1348 (Ind. Ct. App. 1981).



906 INDIANA LAW REVIEW [Vol. 40:891

maintenance]" where Wife was already receiving social security disability
benefits because of her condition.

^^^

The case of In re Marriage of Irwin^^^ addresses the issue of
modification—in this case, termination of spousal incapacity maintenance.
When the parties were divorced in 2002, the court found that Wife was entitled
to incapacity maintenance in the amount of $700 per month and required
Husband to pay Wife's COBRA premiums for a period of thirty-six months. ^^"^

Wife was also required to apply for social security disability benefits, and in the
event she was awarded such. Husband's maintenance obligations would be
reduced or eliminated. '^^ The court further found that Wife's future earnings
would be limited. ^^^ Subsequent to the decree. Wife attempted to work as a
medical-surgical nurse and also attempted to teach nursing at Ivy Tech but had
lost both positions because she was "stressed easily and performed poorly." ^^^

Despite this. Wife's income from employment in the two years subsequent to the
divorce increased to $18,000 and $19,000 respectively.

^^^

Husband filed a petition to modify the trial court's award of support. After
a hearing the court modified the previously ordered spousal maintenance and

terminated the spousal maintenance award. ^^^ Wife appealed.
On appeal, the court reversed. ^"^^ In reaching its decision, the court reviewed

the law in Indiana that allows the trial court to order spousal maintenance

payments. Although the circumstances under which a trial court may order
spousal maintenance are limited in Indiana, ^"^^ Indiana Code section 3 1 - 1 5-7-2( 1

)

allows for the award of "incapacity maintenance."^"^^ The court stated:

Indiana Code section 31-15-7-2(1) . . . allows a trial court to award
maintenance to a spouse if it finds the spouse to "to be physically or

mentally incapacitated to the extent that the ability of the incapacitated

spouse to support himself or herself is materially affected[.]" Upon a
finding of incapacity, the court may then find that maintenance for the

132. Matzat, 854 N.E.2d at 920-21.

133. 840 N.E.2d 385 (Ind. Ct. App. 2006).

134. /df. at387.

135. Id.

136. Id. Wife's average income for the last three years of the marriage due to her disability

was $6136. Id.

137. Mat 391.
138. Id. at 390. In the two years following the divorce Wife had been turned down twice for

social security but was also receiving unemployment compensation which, under Indiana Code

section 22-4-14-3(a), requires an individual to be physically and mentally able to work. Id.

139. Mat 388-89.
140. Id. at 393.

141. Id. at 390 (citing Zan v. Zan, 820 N.E.2d 1284, 1287 (Ind. Ct. App. 2005)). For a

discussion of Zan, see Ruppert & Ruppert, supra note 51, at 1009.
142. In re Marriage of Erwin, 840 N.E.2d at 390 (citing McCormick v. McCormick, 780

N.E.2d 1220, 1223 (Ind. Ct. App. 2003)).



2007] FAMILY LAW 907

spouse is necessary during the period of incapacity, subject to further

order of the court.
'"^^

Li order to modify or terminate an award of spousal maintenance the spouse

who is seeking the modification or termination must make a showing of"changed
circumstances so substantial and continuing" that the terms of the maintenance

order had become unreasonable. ^"^"^ The court said:

As we stated in Lowes [v. Lowes], 650 N.E.2d at 1 174, in determining
whether a substantial change of circumstances has occurred to the point

of making a maintenance award unreasonable, a trial court should

consider the factors underlying the original award. Such factors include

the financial resources of the party seeking to continue maintenance, the

standard of living established in the marriage, the duration of the

marriage and the ability of the spouse from whom the maintenance is
sought to meet his or her needs while meeting those of the spouse

seeking maintenance.*"^^

While it was true that Wife's income had increased and that her symptoms
had improved somewhat, other factors in the original award, including the Wife'

s

inability to maintain stable employment, had remained unchanged. ^"^^ Therefore,

in analyzing the requirement for the finding of substantial and continuing

circumstances, the court found that under the circumstances in the record, the

complete termination of Wife's maintenance was an abuse of discretion by the
trial court.

^"^^

C. Miscellaneous Issues

L Garnishment to Enforce Payment ofSpouse 's Share ofFormer Spouse 's
Military Pension.—It has long been a settled issue that state courts have the
authority to award a portion of disposable military retired pay to former

spouses. ^"^^ If the former spouse to whom payments are to be made was married
to the armed forces member for a period of ten years or more during which the
service member performed at least ten years of service credible in determining
the member' s eligibility, then the former spouse' s payments can be made directly
from the Department of Defense ("DOD").*"^^ This direct payment mechanism
is due to a provision commonly referred to as the 10/10 rule. More specifically,
the Uniformed Services Former Spouses Protection Act (USFSPA) defines the
10/10 requirement as follows:

143. Id. (citations omitted).

144. Id. (citing on Ind. Code § 31-16-8-1(1) (2004)).
145. /J. at 391.

146. /^. at 392.

147. Id.

148. See Mansell v. Mansell, 490 U.S. 581, 583 (1989); Warren v. Warren, 563 N.E.2d 633

(Ind. Ct. App. 1990).

149. 10 U.S.C. § 1048(d)(2) (2000).



908 INDIANA LAW REVIEW [Vol. 40: 89

1

If the spouse or former spouse to whom payments are to made under this
section was not married to the member for a period of 10 years or more
during which the member performed at least 10 years of service
creditable in determining the member's eligibility for retired pay,
payments may not be made under this section to the extent that they
include an amount resulting from the treatment by the court under
subsection (c) of disposable retired pay of the member as property of the
member or property of the member and his spouse. '^^

The question for the court to address in the case of In re Marriage ofCope^^^
was if the former spouse does not meet the requirements of the 10/10 rule for
direct payment of an awarded share of military pension, can that spouse,

nonetheless, enforce payment oftheir share through garnishment and proceedings

supplemental against the current wages of their former spouse?^^^ In this case the

parties entered into a property settlement which was approved by the trial court
which provided for the division ofHusband' s military pension. *^^ Wife could not

secure direct payment from the DOD and Husband refused to pay, taking the
position that if the DOD would not issue direct payment to Wife she would
simply be "out of luck."^^'^ Pursuant to the provisions of Indiana Code section
31-15-7-10, Wife "initiated proceedings supplemental to enforce payment of her

share of the pension through garnishment of [her ex-husband's] current

wages." ^^^ After several hearings, the trial court issued its final order of

garnishment and the ex-husband appealed. ^^^ The court of appeals affirmed.
The court of appeals determined that 10 U.S.C. § 1408(d)(2) only limited a

former spouse's means of collecting his or her share of the military pension not

their entitlement thereto. '^^ In affirming the trial court, the court of appeals noted

that the DOD provides for circumstances such as these and that the remedy "is
for the retired member to make direct payments to his/her former spouse." ^^^

2. Jurisdiction to Enforce Divorce Decree.—The case of Fackler v.
Powell,^^^ which is a significant case regarding a trial court's continuing

jurisdiction to enforce or interpret a decree concerning property, was decided

150. Id.

151. 846 N.E.2d 360 (Ind. Ct. App. 2006).

152. Mat 363.
153. Id. at 361. The payment was to be "through either a qualified domestic relations order

or other transfer mechanism approved by the DOD." Id.

154. /J. at 362.

155. Id. ; Ind. Code § 3 1 - 1 5-7- 1 (Supp. 2006) provides that awards concerning a dissolution

of marriage decree may be enforced by assignment of wages or other income.

156. In re Marriage of Cope, 846 N.E.2d at 362.

157. Id.

158. Id. at 363. The court of appeals cited several government documents as well as provided

relevant web site information. See id. The authors urge any practitioner who has a case involving

military pay to review this case and make note of the resource information provided by the court.

159. 839 N.E.2d 165 (Ind. 2005).



2007] FAMILY LAW 909

during this survey period. However, the case was analyzed in the 2006 survey

of Indiana Law.'^^ The authors would refer the reader to that article.

II. Child Custody and Parenting Time

Custody and parenting time disputes are a very prominent area of Indiana

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

A. Right ofFirst Refusal

The court in Shelton v. Shelton^^^ discussed the opportunity for additional

parenting time; more commonly referred to as the "right of first refusal" ^^^ and

held that the maternal grandmother was not a "family member" within the
meaning of the Guidelines. *^^ The court further held that a "family member"

must be limited to a person within the same household as the parent with physical

custody.
^^"^

Therefore, the non-custodial parent should be offered the parenting

time regardless of whether a non-household family member can care for the
child.

^^'

B. Rights ofa Domestic Partner

Whether a former domestic partner should be entitled to the legal rights of

a parent such as parenting time rights, child support obligations, and other

parental rights and responsibilities with respect to the Mother' s child was at issue

in King v. S.B.^^^ The facts set out in the complaint indicate that S.B. was

"artificially inseminated with semen^^^ donated by King's brother" after the

160. See Ruppert & Ruppert, supra note 51, at 1009.
161. 835N.E.2d513(Ind. Ct. App. 2005).

162. Indiana Parenting Time Guidelines (I)(C)(3) states in part, "When it becomes necessary

that a child be cared for by a person other than a parent or a family member, the parent needing the

child care shall first offer the other parent the opportunity for additional parenting time " IND.

Parenting Time Guidelines (I)(C)(3).

163. Shelton, S35N.E.2d at 51S.

164. /^. at 517.

165. Id. at 518. Note the commentary to the Guidelines (I)(C)(3) that states:

The rule providing for opportunities for additional parenting time promotes the concept

that a child receives greater benefit from being with a parent rather than a child care

provider. It is also intended to be practical. When a parent's work schedule or other

regular recurring activities require hiring a child care provider, the other parent should

be given the opportunity to provide the care. Distance, transportation or time may make

the rule impractical. Parents should agree on the amount of child care time and the

circumstances that require the offer to be made.

iND. Parenting Time Guidelines (I)(C)(3) cmt.

166. 837 N.E.2d 965, 966 (Ind. 2005).

167. The insemination took place in August 1998. Id. The child was bom May 15, 1999. Id.



910 INDIANA LAW REVffiW [Vol. 40:891

parties jointly decided to bear and raise a child together. ^^^ The parties' expenses
were not covered by insurance but instead were paid by S.B. and King's joint

bank account. '^^ Until the relationship ended in January 2002, S.B. and King

were equal parents in A.B.'s care and support. After the termination of their

relationship, King continued to pay child support and have regular parenting time

withA.B.^'^

However, in July, 2003, S.B. decided to terminate parenting time and "began

rejecting King's child support payments."^^^ The lawsuit began on October 31,
2003, when King sought to be recognized as A.B.'s legal parent and have the
same "rights and obligations of a biological parent." ^^^ King argued that even if

the trial court did not find that she was entitled to the title of a legal parent, she
"nonetheless acted in loco parentis and in a custodial and parental capacity,"

which should entitle her to at a minimum continued parenting time with A.B.^''^
The biological mother of A.B. filed a motion to dismiss for failure to state a
claim.

^^"^ The trial court dismissed King's complaint. The court of appeals^^^
reversed the trial court's decision holding that, by virtue of her agreement with

A.B.'s mother. King is a legal parent. ^^^ The Indiana Supreme Court granted
transfer, "thereby vacat[ing] the opinion of the court of appeals."^^^ They also
reversed the trial court's dismissal of King's complaint and remanded the case

to the trial court for further proceedings.
^^^

168. Id.

169. Id.

170. Id.

111. Id.

111. Id.

173. Id.

174. Indiana Trial Rule 12(B)(6) is a defense to a motion for "[f]ailure to state a claim upon

which relief can be granted " IND. Tr. R. 12(B)(6).

175. In re A.B., 818 N.E.2d 126 (Ind. Ct. App. 2004), vacated, 837 N.E.2d 865 (Ind. 2005).

176. Id. Sit 132.

111. King, 837 N.E.2d at 966. Indiana Appellate Rule 58(A) states:

The opinion or not-for-publication memorandum decision of the court of appeals shall

be final except where a Petition to Transfer has been granted by the supreme court. If

transfer is granted, the opinion or not-for-publication memorandum decision ofthe court

of appeals shall be automatically vacated except for: (1) those opinions or portions

thereof which are expressly adopted and incorporated by reference by the supreme

court; or (2) those opinions or portions thereof that are summarily affirmed by the

supreme court, which shall be considered as court of appeals' authority. Upon the grant

of transfer, the supreme court shall have jurisdiction over the appeal and all issues as if

originally filed in the supreme court.

Ind. App. R. 58(A).

178. /sTmg, 837 N.E.2d at 967.



2007] FAMILY LAW 911

C. Parenting Time Rights ofa Biological Parent

In Duncan v. Duncan,^^^ Father adopted Mother's two children from a
previous relationship, H.D. and R.D.^^^ Another child, S.D. was bom during the
marriage. H.D. alleged more than ten years of molestation by her adoptive
father.'^' Mother left with all of the children and Father did not have any further

contact with them. Father was arrested and charged with child molestation.'^^

The charges against Father were dismissed after he suffered a severe stroke
during incarceration.'^^ In March 2004, the parties' marriage was dissolved'^'*
and Mother was awarded sole custody of the parties' children with no visitation

rights for Father at that time.

Father filed a Motion to Establish Parenting Time with the two youngest
children'^^ on February 18, 2005. After a hearing, the trial court denied Father's

motion. '^^ On appeal. Father raised the issue of whether the trial court abused its
discretion by denying his Motion to Establish Parenting Time. While it is true

that "Indiana has long recognized that the rights of parents to visit their children

is a precious privilege that should be enjoyed by non-custodial parents," '^^ a

court may deny those rights whenever it would serve the best interests of the
children. '^^ The appellate court reviewed several past decisions,'^^ but this case

179. 843 N.E.2d 966 (Ind. Ct. App. 2006).

180. /J. at 968.

181. The alleged molestation increased in nature and frequency over the years but began with

touching and forced oral sex when H.D. was five years old and progressed into intercourse by the

time H.D. was eleven. Id. It was alleged that at age thirteen, H.D. told a neighbor about the abuse

but was threatened by Duncan that he had a loaded gun before she talked to officials. Id. She

recanted her story for two more years until she finally told her maternal grandmother at the age of

fifteen. Id.

182. Id. Father was charged with child molestation as both a Class A and Class B Felony in
January 2004. Id.

183. Id.

184. Id. A Dissolution Decree was entered on March 24, 2004. Id.
185. Both R.D. and S.D. are male children.

186. Duncan, 843 N.E.2d at 968. The hearing was held on May 17, 2005, and the order
denying Father's motion was issued on June 10, 2005. Id.

187. Id. at 969 (citing Lasater v. Lasater, 809 N.E.2d 380, 400 (Ind. Ct. App. 2004)).

188. Ind. Code § 31-17-4-2 (Supp. 2005) ("The court may modify an order granting or

denying parenting time rights whenever modification would serve the best interests of the child.

However, the court shall not restrict a parent's parenting time rights unless the court finds that the

parenting time might endanger the child's physical health or significantly impair the child's

emotional development.")

189. See generally Farrell v. Littell, 790 N.E.2d 612 (Ind. Ct. App. 2003); K.B. v. S.B., 415

N.E.2d 749 (Ind. Ct. App. 1 98 1 ). In K.B., the evidence that the inappropriate actions occurred were

conflicting and evidence was presented to show the court that the visitation would not be harmful

and if anything did happen in the past, it would not recur. This case differs from K.B. because H.D.

was a credible teenage witness and had the backing of the Monroe County Division of Family and



9 1

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1

broke ground as the first time it was confronted with a situation where the
molestation allegedly occurred with one child but Father was requesting
parenting time with the other children. Based on the facts of this case,^^° the
appellate court concluded that "visitation between Father and his sons would
endanger their physical health or significantly impair their emotional

development."^^' Therefore, the trial court did not err in denying the requested
1Q9

parentmg time.

D. Biological Parent vs. Third-Party

The issue in In re Paternity ofZ.T.H}^^ was whether or not the parental
presumption applies to a parent's request to modify a third party's custody.

Z.T.H. was in the care and custody of his maternal grandparents, the Ketners, for
more than ten years before Father petitioned the court for a modification of
custody.

'^"^ During the time that the child resided with the Ketners, Father

remained an active part of his life including regular telephone contact, parenting

time and attending the child's school events. The child's mother was not a part
of the action to modify custody. The trial court held that the grandparents failed
to rebut the parental presumption required to maintain custody of Z.T.H. and

awarded custody of the child to his Father.
'^^

The Ketners appealed and argued that they should not be required to rebut
the position because they had been the child's primary custodians for such an

extended period of time. '^^ They further contended that the burden of proof fell
to Father to show a substantial change in circumstances that would make the
modification of custody in the best interests of the child. Alternatively, the

Ketners argued that "even if a parental presumption applies to cases in which the

child has been in the long-term permanent custody of a third party, the parental

presumption is waived where the parent voluntarily relinquishes custody

pursuant [to] a written custody agreement."
'^^

The appellate court compared the facts of Z.T.H. with several prior Indiana

Children. Moreover, besides an adamant denial, Father did not present any evidence to the

contrary. Farrell was different because there was little to no evidence to support the allegations.

1 90. The important facts considered by the court were Father' s lack ofremorse for his behavior

and abuse of H.D. including the threat with a loaded gun and his refusal to attend counseling. The

court also noted that although Mother told the court that he was a good father to the boys, neither

of the boy's desired visitation or a relationship with their father. Duncan, 843 N.E.2d at 971.

Further, R.D. had a rocky relationship with his father and S.D. was just beginning to benefit from

therapy. Id. at 972.

191. Id.

192. Id.

193. 839 N.E.2d 246 (Ind. Ct. App. 2005).

194. Id. at 24S.

195. Id.

196. Id. at 249.

197. Id.



2007] FAMILY LAW 9 1

3

cases. ^^^ However, none of the cases addressed ''the proper analysis where a

parent seeks to modify a long-term permanent third party custody arrangement

and there has not been a significant change in circumstances that led to the parent

initially relinquishing custody." ^^^ Z.T.H.'s Father relinquished custody based

on his fears of being a single, young father.^^^ There was no evidence that he

significantly improved his circumstances from when he voluntarily relinquished
custody. The appellate court was faced with a scenario in which they needed to
combine the parental presumption with the longstanding concept that

"permanence and stability are considered best for the welfare and happiness of

the child."^^^

The court developed a two-step approach for dealing with such cases where
a parent seeks to modify custody when a third-party has been a long-time
permanent custodian for the child(ren).^°^ Their approach protects both the best

interests of the child and the constitutional rights of the parents.^^^ First, the third

party is required to rebut the parental presumption.^^"^ If the third party is

successful at the rebuttal, the "third party and the parent are on a level playing

field, and the parent seeking to modify custody must establish the statutory

requirements for modification by showing that modification is in the child's best

interests and there has been a substantial change in one or more of the
enumerated factors."^^^

The main error that the appellate court found in the trial court's ruling was
its conclusion that the Ketners failed to rebut the parental presumption after

198. See In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002) (involving an initial

custody determination between a father and a step-father after the death of the child's mother and

requiring a third party to rebut the parental presumption by showing that it is not in the child' s bests

interests to be placed with the parent and to show that it is the child's best interests to be placed

with the third party); In re Paternity of V.M., 790 N.E.2d 1005, 1108-09 (Ind. Ct. App. 2003)

(applying the analysis from B.H. where a father voluntarily relinquished custody to the children's

maternal grandmother and then sought a modification of custody after he significantly turned his

life around, the court found for the grandparents under the presumption that it was in the best

interests of the children to be in the custody of their natural parent and required the grandparents

to rebut the parental presumption.); In re Guardianship of L.L., 745 N.E.2d 222, 230-31 (Ind. Ct.

App. 2001) ("[T]here is a presumption in all cases that the natural parent should have custody of

his or her child. The third-party bears the burden of overcoming this presumption by clear and

cogent evidence. ... If the presumption is rebutted, then the court engages in a general 'best

interests' analysis.").

199. /wr^P^f^rmfyo/Zr./f., 839 N.E.2d at 251-52.

200. Id. at 253.

201. Id. at 252 (citing Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)).
202. Id.

203. /J. at 253.

204. The presumption must be rebutted with "evidence establishing the natural parent's

unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the

child and the third party[.]" In re Guardianship ofB.H. , 110 N.E.2d at 287.

205. In re Paternity ofZ.T.H., 839 N.E.2d at 252-53.



914 INDIANA LAW REVIEW [Vol. 40: 89

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finding that Z.T.H.'s Father acquiesced to the Ketners custody of his child.^^^

The appellate court reminded its readers that "Indiana courts have continuously
recognized that the parental presumption may be rebutted with evidence of a
parent's 'long acquiescence' in a third party having custody of a child."^^^ The
Ketners "should have been in the same position as any custodial parent objecting
to a petition to modify custody" ;^°^ therefore, the appellate court remandedZT.H.
for a hearing where Father "has the burden of establishing that the modification

of custody is in Z.T.H.'s best interests and that there has been a substantial

change in circumstances."^®^

ni. Child Support

A. Creditfor Parenting Time

In Fuchs V. Martin^^^ the custodial parent, Mother, was given a credit in the
amount of $36.00 for "parenting time" on line seven of the child support
obligation worksheet that the trial court attached to its order. Father, the non-

custodial parent, asserted that the "parenting time" credit could only be given to

the non-custodial parent.^ ^^ The appellate court agreed and found that Mother
cannot be entitled to the credit according to the plain language of the

Guidelines.^^^ Only a non-custodial parent can receive a monetary credit for

"parenting time." The child support order was remanded back to the trial court
to enter a corrected order.^'^

B. Negative Support

Grant v. Hager^^^ was a case of first impression that addressed whether a
custodial parent could be ordered to pay child support to a non-custodial parent.

In this case. Father earned significantly less income than Mother and exercised

206. Id.dX251.

201. Id. (quoting Hendrickson v. Binkley, 316 N.E.2d 376, 380 (Ind. App. 1974)).

208. Id.

209. Id.

210. 836 N.E.2d 1049 (Ind. Ct. App. 2005).

211. See Ind. CHILD SUPPORT GUIDELINES 3(G)(4) (2004) (stating that "[t]he court may grant

the noncustodial parent a credit towards his or her weekly child support obligation (Line 6 of the

worksheet) based upon the calculation from a Parenting Time Credit Worksheet").

212. The court refers its readers to the commentary on Indiana Child Support Guideline 6,

which explains how to compute the credit. It says in part:

The apportionment of credit for "transferred" and "duplicated" expenses will require a

determination of the annual number of overnights of parenting time exercised by the

parent who is to pay child support, the use of the standard Child Support Obligation

Worksheet, a Parenting Time Table, and a Parenting Time Credit Worksheet.

Ind. Child Support Guidelines 6 cmt.

213. Fuchs, 836 N.E.2d at 1060.

214. 853 N.E.2d 167 (Ind. Ct. App. 2006).



2007] FAMILY LAW 9 1

5

substantial parenting time with the parties' two children. Once the appropriate
parenting time credits were subtracted from Father' s child support, his obligation

was a negative number. The trial court ordered Mother to pay Father an amount
equal to the negative amount. Mother appealed. Father argued that non-
custodial parents may be paying their obligations twice if they participate in
shared parenting time.^^^ He reasoned that they are required to provide the same
basic living environment as the custodial parent and still pay the same child
support obligation. The appellate court closely followed the language of the
child support guidelines^ ^^ and its commentary and reversed the trial courts
decision.^^^ The appellate court held "that the present Indiana Child Support
Guidelines, while authorizing the use of a Parenting Time Credit to reduce the
support obligation of a noncustodial parent, do not permit the application of the

credit in a manner that requires a custodial parent to pay support to a
noncustodial parent."^^^

C. Birth Expenses

In K.T.P. ex rel A.S.P v. Atchison,^^^ the State of Indiana appealed the denial

of full reimbursement for expenses they argued were "birth expenses" of

j^;P p 220 jYiQ State argued that "[u]nder Indiana Code § 31-14-17-1,^21 ^ ^^^rt
in a paternity action must order a father to pay for at least fifty percent of the

expenses of pregnancy and childbirth."^^^ The trial court agreed and ordered
A.S.P. to pay one-half of certain expenses that were directly related to the child's

215. For the court' s purpose, "shared parenting time refers to a situation where a noncustodial

parent exercises more than the traditional amount of parenting time, that is, more than

approximately fifty-two overnights (or 14% ofthe overnights) per year." Id. at 170; see IND. Child

Support Guideline 6 cmt.

216. Indiana and our Child Support Guidelines currently follow the Income Shares Model of

child support. See iND. CHILD SUPPORT GUIDELINE 1.

217. However, it is important to note that the appellate court sympathized with Father's

arguments and reminded its readers that "the federal Family Support Act requires that each State

review their child support guidelines at least once every four years." Grant, 853 N.E.2d at 174

(citing 42 U.S.C. § 667 (2000)). The court went on to say that "Father presents an issue that may

be of considerable interest upon out State's next review." Id. In closing, and in reference to

Father' s concerns, the court said in part, "these and other concerns are best addressed by thejudicial

committees charged with that review rather than by this Court." Id. at 175.

218. Id. at 167-68.

219. 848 N.E.2d 280 (Ind. Ct. App. 2006).

220. /J. at 281.

221. iND. Code § 31-14-17-1 (2004) states that "[t]he court shall order the father to pay at
least fifty percent (50%) of the reasonable and necessary expenses of the mother's pregnancy and

childbirth, including the cost of: (1) prenatal care; (2) delivery; (3) hospitalization; and (4)

postnatal care."

222. K.T.P. , 848 N.E.2d at 282.



916 INDIANA LAW REVIEW [Vol. 40:891

birth.^^^ However, the trial court did not order A.S.P. to pay any of the expenses

incurred after the child' s birth and before this action. The court relied on Indiana
Code section 31-14-17-1 and held that "birthing expenses" did not include
expenses that are not directly related to the birth of the child.^^"^ The trial court's
decision was affirmed.^^^

D. Retroactive Modification

The court in Whited v. Whitecf^^ affirmed the trial court's decision to
retroactively modify Father's child support and give him credit for extended
parenting time. The amount of the child support for three of the parties' children

was at issue.^^^ The children resided in Indiana with Father, and with Mother in
Florida at sporadic times during their upbringing. In determining Father's child

support arrearage, the trial court retroactively gave Father a credit for 183

overnights per year.^^^ Mother argued that Father should not have been given a

credit for ovemights^^^ for the time that the children were residing with him.^^^

While the court acknowledged the long standing case law and public policy in

Indiana against modifying custody outside of written orders from the court,^^^ it

223. Id. A.S.P. was ordered to and agreed to pay one-half of prenatal, birthing, and delivery

expenses.

224. Id.

225. /^. at 281.

226. 844 N.E.2d 546, 532 (Ind. Ct. App. 2006), qff'd in part, rev'd in part, 859 N.E.2d 657

(Ind. 2007).

227. The parties had four children but only three ofthem survived into adulthood. This matter

only concerns the three surviving children. Id. at 548.

228. Id. at 55 1 . Although some of the children practically resided with Father, there was not

a legal change of custody that eliminated Father's child support obligation. The maximum

overnights that a party can be credited for pursuant to the Indiana Parenting Time Guidelines are

183. Id.

229. Mother argued that the 1 99 1 guidelines that were in place when the original support order

was issued should apply and that the earlier guidelines did not calculate for overnights unless they

were mentioned in the order. The appellate court found that the trial court did not harm Mother by

using the new Guidelines because the older guidelines provided for a fifty percent abatement in

child support for extended parenting time. Whited, 844 N.E.2d at 553. The credit that Father is

receiving under the trial courts order is slightly less than that with the maximum 1 83 overnights

allowed. Id.

230. Mother admitted that Father was very good about paying his child support and that she

did not contend that he owed her any additional money from the time that the children resided with

him. Id. at 548. Father paid his child support and did an automatic calculation of what he owed

to Mother by reducing his weekly amount by one-third for each child that was residing with him

at any given time. Mother never paid Father any support for the times that the children resided with

Father. Id.

231. See Nill v. Martin, 686 N.E.2d 116, 117 (Ind. 1997).



2007] FAMILY LAW 917

also recognized that there are exceptions to the rule.^^^ The court held that the
parties had an implied contract regarding custody that warranted a credit to

Father.

E. Imputing Income

The court of appeals addressed an area of first impression regarding the
imputation of income during incarceration in Lambert v. Lambert?^^ The parties
in Lambert entered into a preliminary agreement during the pendency of their

divorce whereby Father would pay Mother $277 per week in child support based
on his earnings as a computer consultant.^^"^ Before the final decree was entered,

Father was incarcerated.^^^ For child support purposes, the trial court imputed

Father's income consistent with his income prior to his incarceration.^^^ Father

argued that he would not be able to obtain employment in that field again due to

his conviction.^^^ The trial court did not sympathize with Father and held that his

232. See Isler v. Isler, 425 N.E.2d 667, 670 (Ind. Ct. App. 1981) ("We are of the opinion that

a narrow exception to the rule may exist in a case where the obligated parent, by agreement with

the custodial parent, has taken the child or children into his or her home, has assumed custody of

them, has provided them with food, clothing, shelter, medical attention, and school supplies, and

has exercised parental control over their activities and education for such an extended period of

time that a permanent change of custody is demonstrated. In such a case the court may, in its sound

discretion, allow credit against the accrued support for the reason that the obligated parent has

merely furnished support in a different manner under circumstances easily susceptible of proof.")-

233. 839 N.E.2d 708 (Ind. Ct. App. 2005). After the closing of the survey period but before

publication of this article, this court of appeals opinion was vacated by the Indiana Supreme Court

on February 22, 2007. Lambert v. Lambert, 861 N.E.2d 1 176 (Ind. 2007). The court stated that

"[w]hile our Child Support Guidelines obligate every parent to provide some support even when

they have no apparent present income, it was error to set support based on employment income that

plainly would not be there during incarceration." Id. Going further, the court acknowledged that

"[t]he Court of Appeals was correct to note that most criminal activity reflects a voluntary choice,

and carries with it the potential for incarceration and consequent unemployment." Id. at 1180.

However, the supreme court distinguished incarceration from voluntary underemployment. Child

support computations should include and consider only the obligor's actual income or resources

available from other sources (i.e. rental income, trust funds, inheritances). The supreme court

decision in Lambert only "counsels against imputing pre-incarceration wages, salaries,

commissions, or other employment income to the individual." Id. at 1 182. The court's decision

reminds its readers that "a court could well order an increased support payment as soon as the

incapacity caused by prison is removed from a non-custodial parent's ability to earn income." Id.

The burden to modify would then fall on the previously incarcerated parent.

234. Father made approximately $ 1500 per week. Id. at 7 1 1

.

235. Father had been charged with the molestation of two of his nieces before the preliminary

agreement was executed but had not been convicted. Id.

236. /^. at 712.

237. Id.



918 INDIANA LAW REVIEW [Vol. 40:891

incarceration was due to his voluntary actions.^^^ The trial court's holding was
supported by previous Indiana Appellate decisions^^^ that found "that an obligor
parent must take responsibility for crimes that he/she commits, and all of the
consequences which flow from them."^"^^

Father argued that the fact scenarios in the earlier cases do not apply because

the parties were seeking a modification of child support due to incarceration. In

Lambert, the court was making its initial determination of child support with
imputed income information. After reviewing the prior Indiana decisions, the

trial court was clear that incarceration due to "voluntary criminal conduct is not
a valid rationale for abatement of an existing child support obligation."^"^^

However, the question posed to the court in Lambert was whether the same
applied when the court is making an initial determination of an obligation. Case
law from other states was not much guidance to the Indiana courts because they
had decided both for and against the imputation based on incarceration.^"^^ The
appellate court in Lambert decided that incarcerated parents should be treated the
same as voluntarily underemployed parents. They reasoned that "[n]ot only is
incarceration a foreseeable result of voluntary criminal conduct, but conviction

of a crime necessarily imputes some fault to the perpetrator, fault for which he
should not be rewarded with a lower child support obligation than he would have
otherwise."^"^^ Although the court affirmed the trial court' s decision, it also noted

that "a contempt finding would likely be inappropriate for any arrearage that

accrues Father while incarcerated."^"^ The court also noted that any resources
referred to in the Indiana Child Support Guideline 3(A)(1)^'^^ that become
available to Father during his incarceration should also be available to support

his children.^"^^

238. Id.

239. See, e.g., Holsapple v. Herron, 649 N.E.2d 140, 142 (Ind. Ct. App. 1995); Davis v.

Vance, 574 N.E.2d 330, 331 (Ind. Ct. App. 1991).

240. Lflm^?m, 839 N.E.2d at 712.

241. Mat 713.
242. See, e.g.. In re Marriage of Rottschiet, 664 N.W.2d 525, 535 (Wis. 2003)

("[IJncarceration is an appropriate factor for courts to consider in reviewing a motion for

modification, but the fact of incarceration alone is insufficient for a court to modify, or refuse to

modify, a child support order."); Logan v. Bush, 621 N.W.2d 314, 318 (N.D. 2000) ("[IJmputation

of income was authorized . . . ."); Koch v. Williams, 456 N.W.2d 299, 300 (N.D. 1990) ("[A] child

support obligor's incarceration . . . does not constitute a material change ofcircumstances justifying

a modification of child support payments."); Parker v. Parker, 447 N.W.2d 64, 66 (Wis. Ct. App.

1989) ("[C]hild support need automatically not terminate during incarceration.").

243. LflmZ^m, 839 N.E.2d at 714.

244. /t/. at 715.

245. The Indiana Child Support Guidelines state in part "pensions, interest, trust income,

annuities, capital gains, social security benefits, workmen's compensation benefits, unemployment

insurance benefits, disability insurance benefits, gifts, inheritance, [and] prizes." iNfD. CHILD

Support Guidelines 3(A)(1).

246. LamZ7m, 839 N.E.2d at 715.



2007] FAMILY LAW 919

Another case of first impression dealing with the imputation of income was

Meredith v. Meredith}"^^ The Father in Meredith took a voluntary early
retirement in order to increase the amount of his monthly pension.^"^^ The trial
court annualized his income using tax returns from the three prior years when
determining whether his child support obligation should be modified.^"^^ Father

appealed the trial court's calculation because his federal tax returns showed
overtime that was irregular income.^^^ The appellate court agreed that Father
became voluntarily underemployed when he took the early retirement but held
that in this case, "[t]he inclusion of overtime pay in the determination of Father's

potential income would force him to work to his full potential or make career
decisions based strictly upon the size of his paycheck."^^^ In its decision to
reverse and remand the matter for a calculation consistent with its decision, the
appellate court suggested calculating Father's income using the hourly rate he

was making before his retirement or the amount of his pension plus an imputation

at minimum wage.

F. Social Security Disability

In Brown v. Brown,^^^ the Indiana Supreme Court addressed the application
of Social Security disability payments to child support. Father was disabled and

his son received a lump sum for payment of retroactive disability benefits.^^"^ At
the time of the payment. Father had accrued a substantial arrearage on his child

support obligation and sought to have the lump sum that his son received applied
to his arrearage.^^^ He also sought to have the monthly payments that his son
would receive in the future credited towards his weekly child support obligation.
The trial court held that Father was not entitled to a credit on his obligation from
the lump sum payment to his son.^^^ The appellate court affirmed that

247. 854 N.E.2d 942 (Ind. Ct. App. 2006).

248. Mat 945.
249. Father filed his motion for modification of child support on February 24, 2004, and took

early retirement on April 1, 2004. Id.

250. While the Indiana Child Support Guidelines state that all overtime and bonus can be

included when calculating income, it is also a very sensitive area. iND. CHILD SUPPORT GUIDELINES

3(A).

251. Meredith,S54N.E.2dat949,seealsoInrePatcmityofBueh\eT,516N.E.2d 1354, 1356

(Ind. Ct. App. 1991).

252. Meredith, 854 N.E.2d at 950. The court also noted that the trial court may wish to

include a requirement that Father pay an additional percentage of any additional income he may

earn from continued occasional work for his previous employer. Id.

253. 849 N.E.2d 610 (Ind. 2006).

254. Id. at 612.

255. Id.

256. Id.



920 INDIANA LAW REVIEW [Vol. 40:891

decision.^^^ Father sought transfer and it was granted.^^^

The court reviewed the rationale from previous decisions^^^ and in a much
anticipated decision, held that a disabled child support obligor was entitled to a
credit against child support obligations for Social Security disability payments

paid to child. ^^^ The court did articulate some guidelines and principles for
application of the credit for lump-sum retroactive benefits towards a child
support obligation. First, the payment of retroactive "benefits cannot be credited
against child support arrearages" that existed before the filing of a petition to

modify child support based on the disability.^^^ The court acknowledged that
disabled persons have no influence on the amount of time the government takes
to determine benefits and recommended that the disabled party should file his or
her petition to modify, thus giving notice to all parties that the receipt of benefits

is a possibility.^^^ The trial court could then defer its ruling and wait for a
decision from the govemment.^^^ Once a decision is made regarding the receipt
of benefits, the trial court can order a retroactive modification of support back to

the date of filing the petition to modify. However, note that "the filing of the

petition does not relieve the parent of the parent' s child support obligation until

257. M
258. Id.

259. In Poynter v. Poynter, the Indiana Court ofAppeals held that a "disabled parent is entitled

to have child support obligations credited with the Social Security disability benefits received by

the child because of that parent's disability." 590 N.E.2d 150, 152 (Ind. Ct. App. 1992). The court

in Brown did not follow this rationale after reviewing Stultz v. Stultz, 659 N.E.2d 125 (Ind. 1995),

a subsequent supreme court case. Brown, 849 N.E.2d at 614. Stultz involved a party seeking credit

for social security retirement benefits received by his children. The trial court denied such credit

in Stultz, but following Poynter, the court ofappeals reversed. The supreme court in Stultz held that

the benefits paid to children are only a factor in determining whether a credit should be applied and

the trial court has discretion in determining when to apply such a credit. Stultz, 659 N.E.2d at 128.

Although Stultz was not decided based on the difference between retirement and disability

payments, the court did include that a disability recipient may have a stronger case for applying a

credit than a retirement recipient. Brown, 849 N.E.2d at 614. The court in Stultz deferred making

a definitive holding on that issue until there was a case on point and Brown is just that. Id.

260. Brown, 849 N.E.2d at 6 1 1 . The court did not revisit its holding in Stultz regarding trial

court discretion with respect to retirement benefits. Id. The court compared the differences

between Social Security disability and Social Security retirement benefits and said "[d]isability

impacts a parent's earning capacity and, therefore, a child's standard of living, in a fundamentally

different way than does retirement. The trial court is in the best position to assess the impact of

retirement in any particular case." Id.

26 1

.

/J. at 6 1 5 . The requirement of a petition to modify stems from Indiana Code section 31-

16-16-6 which prohibits "retroactively modify[ing] an obligor's duty to pay a delinquent support

payment." Id. (alteration in original).

262. Id. The court followed the guidance of the Michigan Court of Appeals in Jenerou v.

Jenerou, 503 N.W.2d 744, 746 (1993).

263. firown, 849N.E.2dat615.



2007] FAMILY LAW 921

such time as there is a modification, if any, ofthe existing child support order."^^"^

An obligor's arrearage will continue to accrue pending the receipt of benefits.
Secondly, any over payment that is made by the credit of the lump sum will be
treated as a gratuity and not a payment advance on a future obligation. ^^^ The

same may be true "where prospective Social Security disability benefits paid to
children exceed the amount of the parent's corresponding child support

payment."^^^ In that situation, the disabled party would be well served to seek a

modification of his or her weekly obligation to reflect the benefits.

The trial court decision in Dedek v. Dedelc^^^ was reversed after the ruling in

Brown?^^ With facts very similar to those in Brown, Father sought to have a lump

sum payment of Social Security disability benefits made to his children applied
retroactively to his child support arrearage.^^^ The trial court denied his request,

but pursuant to Brown, the appellate court reversed that decision and held that

"Father is entitled to a credit against his arrearage, but only for the arrearage

accumulated after he filed his petition to modify his child support based on his

disability.
"^^^ This case was remanded back to the trial court to determine the

child support arrearage at the time the petition to modify was filed.^^^ Another

issue in Dedek was Father's direct payments that he made to Mother. The trial
court looked at the language in the parties' divorce decree that stated that the

child support payments "shall be paid to the Clerk of Monroe County"^^^ and
held that because the payments were made to Mother and not the Clerk, the
payments should be credited as payment for the children's educational

expenses.^^^ The appellate court found that analysis to be clearly erroneous and

held that the payments should have first been applied to his child support

arrearage.^^"^

264. Id. The court referenced Tarbox v. Tarbox, 853 A.2d 614, 621 (Conn. App. Ct. 2004).

265. Brawn, 849 N.E.2d at 616.

266. Id.

267. 851 N.E.2d 1048, 1049 (Ind. Ct. App. 2006).

268. Dedek was decided on August 3, 2006; just over one month after the decision in Brown

was handed down by the Indiana Supreme Court.

269. D^^^it, 851N.E.2datl049.

270. Id. (emphasis added).

271. Unfortunately for the father in this case, his petition to modify was not filed until

December 14, 2005, just two days before the lump sum payment was made on December 16, 2004.

Although the trial court was legally and technically reversed, the impact would be essentially the

same in this case with or without retroactive application to the date of filing the petition.

272. D^J^A:, 851N.E.2datl052.

273. Id. Mother never made a claim that Father was in arrears on his obligation to pay fifty

percent of the children's educational expenses. Furthermore, she admitted to receiving the

payments from Father. The court relied on Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997), in

finding that "[c]redit has been allowed for payments that do not technically conform to the original

support decree." Dedek, 851 N.E.2d at 1052. Historically, courts give credit for payments where

sufficient evidence is shown to prove the payments were made. Id.

21A. Dedek, 851 N.E.2d at 1049.



922 INDIANA LAW REVIEW [Vol. 40: 89

1

G. Post-Secondary Educational Expenses

In Borum v. Owens,^^^ Father appealed the trial court's decision that denied
his petition to modify the payment of college expenses for his daughter.^^^ Father

filed his petition to modify on April 26, 2005, in anticipation of his daughter's

upcoming wedding^^'' alleging that her marriage was "additional evidence of her
emancipation."^^^ Father relied on Indiana Code section 31-16-8-1(1) which
allows for modification only "upon a showing of changed circumstances so

substantial and continuing as to make the current terms unreasonable."^^^ The
appellate court considered the additional income to which Daughter would have
access as a result of being married and sharing expenses with her husband.^^^

The appellate court reversed the trial court decision and held that Father had
"established a change in circumstances so substantial and continuing as to make
the terms of the May 17, 2004 order unreasonable."^^^

H. Foreign Judgments

Another matter of first impression was whether a domesticated foreign

judgment which included post-judgment interest at the forum state's rates was

entitled to full faith and credit. In Johnson v. Johnson,^^^ a Washington State

child supportjudgment was domesticated in Indiana. The Washingtonjudgment
provided for post-judgment interest at the rate of twelve percent.^^^ Father

argued that the post-judgment interest should be calculated pursuant to Indiana's

rate of eight percent.^^"^ Mother argued that the interest should be calculated

based on the state that rendered the judgment.^^^ The appellate court agreed with
Mother and concluded that

275. 852 N.E.2d 966 (Ind. Ct. App. 2006).

276. According to his divorce decree, Father was required to pay ninety-two percent of his

daughter's remaining college expenses after scholarships and grants and Mother was to pay eight

percent. Id.

211 . Id. at 968. Daughter planned to, and in fact did, marry her fiancee on June 1 1 , 2005. Id.

278. She had been formally emancipated by the court on May 17, 2004, but it was subject to

her parent's continued duty to contribute to her college expenses. Id.

279. Id. at 969 (citing Ind. Code § 31-16-8-1(1) (2004)).

280. Id. at 970. In summary, Daughter' s fiancee testified that he made approximately $40,000

to $44,000 per year and that he and Daughter would continue to reside in her current apartment

after their marriage. Father made $41,000 in 2004. Id.

281. Id.

282. 849 N.E.2d 1 176, 1 177 (Ind. Ct. App. 2006).

283. /cf. at 1178.

284. Id.

285. Id.\ see also Mahl v. Aaron, 809 N.E.2d 953, 959 (Ind. Ct. App. 1994), ajfd sub nom.

Aaron v. Scott, 851 N.E.2d 309 (Ind. Ct. App. 2006), trans, denied, 2007 LEXIS 45 (Ind. 2007)

(judgment from a sister state that is domesticated in an Indiana court will be given full faith and

credit).



2007] FAMILY LAW 923

a domesticated foreignjudgment that provides for post-judgment interest

at the rendering state's statutory rate is entitled to full faith and credit in

Indiana as to both principle and post-judgment interest at the rendering

state's rate, unless the judgment debtor can show that the enforcement
of the post-judgment interest part of the judgment would violate Indiana

public policy.^^^

Pursuant to the Indiana Code, it is possible to have interest applied to delinquent

child support payments at the rate of eighteen percent.^^^ Father was unable to
show that Washington's interest rate was against Indiana public policy because
Indiana's "legislature has determined that it is [the] state's public policy to allow

a higher rate of interest on delinquent child support payments than the rate

ordered here under Washington state law."^^^

IV. Relocation

Effective July 1, 2006, the law in Indiana regarding relocation changed

substantially with the implementation ofthe new relocation statute.^^^ Relocation
occurs when there is a change in an individual's residence for at least sixty
days.^^^ The new statute applies to non-relocating individuals^^ ^ and parents as
well as relocating individuals.^^^ A relocating individual must give appropriate
notice,^^^ within the prescribed period^^'^ prior to his or her relocation to all non

286. Johnson, 849 N.E.2d at 1 180.

287. Id. at 1 179 (citing iNfD. CODE § 31-16-12-2 (2004)). The statute provides:

The court may, upon a request by the person or agency entitled to receive child support

payments, order interest charges ofnot more than one and one-halfpercent ( 1 1/2%) per

month to be paid on any delinquent child support payment. The person or agency may

apply for interest if support payments are not made in accordance with the support

order. Accrued interest charges may be collected in the same manner as support

payments under IC [section] 31-16-9.

IND. Code § 31-16-12-2. However, even if the court found that the appropriate application of

interest was Indiana' s rate, the higher rate would not apply because it must be specifically requested

by the parent seeking its application. Johnson, 849 N.E.2d at 1 179 (citing Caldwell v. Black, 727

N.E.2d 1097, 1 100 (Ind. Ct. App. 2000)).

288. Johnson, 849 N.E.2d at 1 179.

289. Ind. Code § 31-17-2.2 (Supp. 2006) (repealing Ind. Code §§ 31-17-2-4, -23 (2004)).

290. Id. §31-9-2-107.7.

291. Any person who has custody, parenting time or grandparent visitation with a child or

someone who has filed a legal action seeking custody, parenting time or grandparent visitation with

a child. M. § 31-9-2-84.6.

292. A person who has custody or parenting time with a child or is seeking custody of
parenting time, and intends to move his or her principal residence. Id. § 31-9-2-107.5.

Grandparents with visitation rights do not fall under the term of relocating individuals. Id.

293. The notice must include the address and mailing address of the relocating individual's

new residence, the home and other telephone numbers for the relocating individual; the date the



924 INDIANA LAW REVIEW [Vol. 40:891

relocating individuals and file the notice with the clerk of the court that issued

the custody or parenting order.^^^ If that provision is not applicable, he or she

must file the notice with the clerk of the court having jurisdiction over custody

or parenting time with the child.^^^ The nonrelocating parent can file a motion
objecting to the child's relocation within sixty days of receiving the notice.^^^ A
nonrelocating parent can seek a temporary or permanent injunction preventing

the relocation of the child.^^^ Nonrelocating individuals as well as non relocating

parents can also file motions to modify custody, parenting time, grandparent

visitation or child support orders.^^^ If the nonrelocating parent fails to file a

motion to temporarily or permanently enjoin the child's relocation within sixty

days after his or her receipt of the notice, the relocating custodian may
relocate.^^^

If the relocating parent meets the burden of proof to show relocation is made
in good faith and for a legitimate reason, the burden shifts to the nonrelocating

parent.^^' The person objecting to the relocation must show the court that the
"proposed relocation is not in the best interest of the child" ;^^^ that the notice

"was not served in a timely manner" and that a parenting time agreement has not

been presented; "that the child has been relocated without" appropriate notice or

"an agreement between the parties" or an order of the court; or, "that there is a

likelihood that, after final hearing, the court will not approve the relocation of the

child.
"^^^ Pending a final hearing, the court may grant a temporary order

permitting relocation if it finds that timely and appropriate notice was given; it

relocating individual intends to move; "[a] brief statement of the specific reasons for the proposed

relocation of the child"; "[a] proposal for a revised schedule of parenting time or grandparent

visitation with the child; a statement that a parent must file an objection to the relocation of the

child with the court not later than sixty (60) days after receipt ofthe notice"; and, "[a] statement that

a non-relocating individual may file a petition to modify custody order, parenting time order,

grandparent visitation order or child support order." See id. § 31-17-2.2-3(a)(2).

294. The notice must be given "not later than ninety (90) days before the date that the

relocating individual intends to move." Id. § 31-17-2.2-3(a)(l)(B). If the information cannot be

provided at least ninety days before the intended move, the relocating individual must provide the

information within ten days ofobtaining it. Id. § 31-17-2.2-3(b). Regardless of the foregoing, "the

relocating individual must provide all of the information required . . . not later than thirty (30) days

the relocating individual intends to move the new residence." Id.

295. /^. §§31-17-2.2-1,-3.

296. Id. §31-17-2.2-1.

297. Id. §31-17-2.2-5.

298. Id. The objection must be made in good faith and for a legitimate reason. Id.

299. /J. §31-17-2.2(l)(b).

300. Id. § 31-17-2.2-5(e). "On the request of either party, the court shall hold a full

evidentiary hearing to grant or deny a relocation motion under subsection (a)." Id. § 31-17-2.2-

5(b).

301. Id. §31-17-2.2-5(d).

302. Id.

303. Id. §31-17-2.2-6(a).



2007] FAMILY LAW 925

orders a revised schedule for temporary parenting time; and it finds "there is a

hkelihood that, after the final hearing, the court will approve the relocation of the

child."^^"^ At the final hearing, the court will determine whether to allow the

permanent relocation of the child after considering the relocation factors and

whether the relocation is in the child's best interests. ^^^ Obviously, the greater

the distance involved in the planned relocation, the more significant the threat to

the continuity, quality, and pattern of interaction between the children and the

parent left behind. Lidiana's relocation statute has finally officially recognized

what trial courts and practitioners have always known in these highly emotional
cases: the legitimacy of the reason for relocating and the motives for relocating

and opposing the relocating are crucial.

V. Paternity

During the survey period, the Indiana legislature adopted several additions

and changes to the paternity affidavit statute. These changes became effective
as of July 1, 2006. Since the adoption of the new statute, fathers who sign a
paternity affidavit after the birth of a child are now considered to be a child's
legal father without requiring further court proceedings.^^^ These fathers are also

afforded reasonable parenting time with the child unless a court determines

otherwise.^^^ Once sixty days have elapsed after the execution of a paternity
affidavit, the affidavit may only be rescinded for two reasons.^°^ It can be
rescinded if there is a showing that there was "fraud, duress, or material mistake
of fact [during] the execution of the paternity affidavit" or if rescinder is

requested by the man who signed the affidavit and only then if that man was

304. Id. §31-17-2.2-6(b).

305. Id. § 31-17-2.2-6(c). The court will consider the following relocation factors:

( 1

)

The distance involved in the proposed change of residence.

(2) The hardship and expense involved for the nonrelocating individual to exercise

parenting time or grandparent visitation.

(3) The feasibility ofpreserving the relationship between the nonrelocating individual

and the child through suitable parenting time and grandparent visitation

arrangements, including consideration ofthe financial circumstances ofthe parties.

(4) Whether there is an established pattern of conduct by the relocating individual,

including actions by the relocating individual, including actions by the relocating

individual to either promote or thwart a nonrelocating individual' s contact with the

child.

(5) The reasons provided by the

(A) relocating individual for seeking relocation; and

(B) nonrelocating parent for opposing the relocation of the child.

(6) Other factors affecting the best interest of the child.

Id. §31-17-2.2-l(b).

306. IND. Code § 16-37-2-2. l(m) (Supp. 2006).

307. Id. § 16-37-2-2.1 (g)(2)(B).

308. Id. § 16-37-2-2.1(1).



926 INDIANA LAW REVIEW [Vol. 40: 89

1

excluded as the child's father after biological testing.^^^ A paternity affidavit
may only be set aside if genetic testing excludes the man who signed the affidavit
as the child's father.^'^

The case of In re Paternity of N.R.R.L?^^ focused primarily on civil
procedure. It involved a paternity matter where the birth mother and her

boyfriend, Rogge, executed a paternity affidavit soon after the child's birth.^^^

Almost two years later,^'^ Milner filed a petition to establish paternity of the

child naming the child's mother as the sole respondent.^ ^"^ The parties stipulated
to genetic testing which proved Milner to be the child's biological father. Six

months later, in April 2005,^^^ Mother filed a motion to dismiss the paternity
action filed by Milner. Rogge, the child's "legal father," filed a motion to

intervene and later filed a notice of joinder in mother's motion to dismiss.^'^

Milner, now the child's presumed father,^'^ filed a motion to join Rogge. The
motion to dismiss was denied, but Rogge' s motion to join Rogge as a party was
granted.^ ^^ Rogge filed an interlocutory appeal contending the court erred when

309. Id. Fathers have sixty (60) days after execution of the affidavit to request the court to

order genetic testing. Id. § 16-37-2.2. 1(h).

310. Id. § 16-37-2-2.1(k).

311. 846 N.E.2d 1094 (Ind. Ct. App.), trans, denied, 860 N.E.2d 586 (Ind. 2006).

312. /J. at 1 095 . The paternity affidavit was executed pursuant to Indiana Code section 31-14-

2-1.

313. The statute oflimitations for filing a paternity action is two years. iND. Code § 31-14-5-3

(2004). Note that Milner filed his petition just under one week before the statute would have run.

314. In re Paternity ofN.R.R.L, 846 N.E.2d at 1095.

315. The court states that Mother filed her motion in April, 2004, but upon preparing a

timeline of facts, the author noticed a discrepancy in the dates. Counsel of record for the case was

contacted and he confirmed the actual date of filing the motion was April 2005, the spring

following Milner' s petition,

316. In re N.R.R.L, 846 N.E.2d at 1095.

317. Ind. Code § 31-14-7-1 (2004) provides:

A man is presumed to be a child's biological father if:
(l)the:

(A) man and the child's biological mother are or have been married to each other; and

(B) child is bom during the marriage or not later than three hundred (300) days after the

marriage is terminated by death, annulment, or dissolution;

(2) the:

(A) man and the child's biological mother attempted to marry each other by a marriage

solemnized in apparent compliance with the law, even though the marriage:

(i) is void under IC 31-11-8-2, IC 31-11-8-3, IC 31-11-8-4, or IC 31-11-8-6; or

(ii) is voidable under IC 31-1 1-9; and

(B) child is bom during the attempted marriage or not later than three hundred (300)
days after the attempted marriage is terminated by death, annulment, or dissolution; or

(3) the man undergoes a genetic test that indicates with at least a ninety-nine percent

(99%) probability that the man is the child's biological father.

318. In re Paternity ofN.R.R.L, 846 N.E.2d at 1095.



2007] FAMILY LAW 927

it denied the motion to dismiss.^'^ Rogge argued the paternity action should have

been dismissed because he "was a necessary party but was not named a party in
that action."^^^ The court of appeals found that he was indeed a necessary party

as an adjudicated father; however, any error that resulted from Milner's failure

to add him was harmless as it was remedied when he was allowed to intervene
in the action.^^^ The court did not reach the issue of whether the genetic testing

that established Milner as the biological father excluded Rogge as the child's
biological father,^^^ it simply found that Milner did, in fact, have a claim upon

which relief could be granted, and that the trial court did not err in denying

Rogge' s motion to dismiss.^^^

VI. Adoption

A. Standing to Participate in Proceedings

In re Adoption ofJ.B.S?^"^ held that a party ' s visitation privileges with a child

through a guardianship do not guarantee standing to participate in adoption

proceedings.^^^ Alfred Weidenhammer was married to J.B.S.'s grandmother.^^^

After the child's mother, Strucker, was incarcerated, the couple were appointed
guardians of the minor child and she began living with them. In December 2003,
the child's grandmother passed away.^^^ The child's maternal aunt, Sorensen,
petitioned the court to become the successor guardian for the child. The court
denied her motion but gave her visitation privileges with the child.^^^

Weidenhammer filed a verified petition to adopt J.B.S. in August 2004, and the
appropriate home studies were conducted.^^^ The court held a hearing on his

319. Id. The appellate court determined that although Rogge did not state it exactly, his

motion to dismiss was essentially a motion to dismiss for failure to state a claim upon which relief

can be granted pursuant to Indiana Trial Rule 12(B)(6) and the court treated it as such. Id.

320. /^. at 1096.

321

.

Id. The court compared the facts of this case to those in In re Paternity ofK.LO., 816

N.E.2d 906 (Ind. Ct. App. 2004). In K.L.O., the mother and her boyfriend executed a paternity

affidavit as soon as the child was bom. Id. at 907. The case is also similar because a different man,

Larkins, later took a paternity test that confirmed his parentage of the child with a probability over

of 99.99%. Id. Unlike this case, the legal father in K.L.O. was never a party to any of the paternity

proceedings. Id. In N.R.R.L., Rogge was allowed to intervene in the paternity action by Milner,

therefore, any harm that arose out of Rogge not being named in the action was remedied. In re

Paternity ofN.R.R.L, 846 N.E.2d at 1096.

322. In re Paternity ofN.R.R.L.,S46N.E.2d at 1097 n.3.

323. Mat 1098.
324. 843 N.E.2d 975 (Ind. Ct. App. 2006).

325. /J. at 978.

326. Mat 976.
327. Id.

328. Id. She was granted visitation two Thursdays and one Sunday a month. Id.

329. Id. The adoption report to the court recommended the granting of Weidenhammer'

s



928 INDIANA LAW REVIEW [Vol. 40:891

petition on November 22, 2004.^^° The court entered a decree of adoption on
December 17, 2004.^^^ Sorensen filed a verified motion to set aside the adoption
order on February 1 8, 2005.^^^ The trial court agreed with Sorensen and set aside
the decree of adoption stating that it had been procured by fraud. ^^^

Weidenhammer appealed and the appellate court held that "[w]hile she had been
granted the privilege to visit J.B.S. under the previous guardianship, Sorensen

had no standing to participate in the adoption proceedings, and certainly no

standing to object to those proceedings once final."^^'* The case was remanded
back to the trial court to revoke and set aside its order.

^^^

B. Consent

A mother appealed the trial court's decision to grant adoption of her child to
the paternal grandparents arguing that she did not consent to the adoption in In

re Adoption of C.E.N}^^ C.E.N. 's paternal grandparents, Alfred and Lucy
Stamper, were granted custody of him in October 2001.^^^ The child's natural
father consented to the adoption of C.E.N.^^^ However, his biological mother,

Saulmon, would not consent to the adoption although she had admitted that she

was "not in a position to have custody" of C.E.N.^^^ Saulmon did not make any
effort to provide cash to support C.E.N.^'^^ Furthermore, she failed "to exercise

petition. Id.

330. Id. Weidenhammer stated at the hearing that Sorensen had not exercised her visitation

rights with the child since the summer of 2004. Id. The court later found that statement to be false.

Id.

331. Id. 2X 977. The Decree granted Weidenhammer' s adoption of the child and terminated

Stucker's parental rights. Id. The Decree was later amended to reflect the correct spelling of

J.B.S. 's name. Id. The amended decree is dated January 19, 2005. Id.

332. Id. Sorensen's argument was based on the false testimony ofWeidenhammer concerning

her failure to exercise her visitation privileges with the child. Id.

333. Id. Although it has been indicated in caselaw that fraud may be one of the reasons a court

can set aside an adoption, those cases involve situations where a particular person whose consent

was required for the adoption was defrauded. Id. at 978 (citing Adoptive Parents of M.L.V. v.

Wilkens, 598 N.E.2d 1054, 1057 (Ind. 1992)). Here, the trial court did not need Sorensen's consent

before issuing the decree of adoption. Id.

334. In re Adoption ofJ.B.S., 843 N.E.2d at 978. Standing is defined as "[a] party's right to

make a legal claim or seek judicial enforcement of a duty or right." Black's Law Dictionary
1442 (8th ed. 2004).

335. Id. 2X919.

336. 847 N.E.2d 267, 271 (Ind. Ct. App. 2006).

337. Id. at 269. C.E.N, was bom on August 2, 2000, and had been in the care and custody of

his grandparents since the age of eight months old. Id.

338. Id.

339. Id.

340. Id. The findings of fact from the trial court indicated that Saulmon contributed

approximately $125 to C.E.N, from October 2001 through November 2004. Id.



2007] FAMILY LAW 929

any substantial parenting time or communicate with C.E.N." while he was with

the Stampers.^"^^ Saulmon argued that her consent was required for the Stampers

to adopt C.E.N.^^2 The trial court followed Indiana Code section 31-19-9-8^^^ and
held that because Saulmon failed "to communicate significantly with C.E.N."
without justifiable cause during the one year prior to the filing of the petition for

adoption, her consent was not necessary.^"^"^ The appellate court agreed and held
that the trial court ''properly granted the Stampers' petition for adoption of

C.E.N."3''

341. Id. at 269-70. At one time, C.E.N, and Saulmon lived in the same apartment complex;

yet Saulmon did not make any effort to visit with her child. Id. at 270. Saulmon visited C.E.N, for

approximately ten minutes on Christmas day in 2003 and declined offers made by Lucy to arrange

parenting time. Id.

342. /J. at 271. IND. Code § 31-19-9-1 (2004) provides:

(a) Except as otherwise provided in this chapter, a petition to adopt a child who is less

than eighteen (18) years of age may be granted only if written consent to adoption has

been executed by the following:

(1) Each living parent of a child bom in wedlock.

(2) The mother of a child bom out ofwedlock and the father of a child whose patemity

has been established by:

(A) a court proceeding other than the adoption proceeding, except as provided in IC

31-14-20-2; or

(B) a patemity affidavit executed under IC 16-37-2-2.1;

unless the putative father gives implied consent to the adoption under section 15 of this

chapter.

343. In pertinent part, iND. CODE § 31-19-9-8 states:

(a) Consent to adoption, which may be required under section 1 of this chapter, is not

required from any of the following:

( 1

)

A parent or parents if the child is adjudged to have been abandoned or deserted for
at least six (6) months immediately preceding the date of the filing of the petition

for adoption.

(2) A parent of a child in the custody of another person if for a period of at least one
(1) year the parent:

(A) fails without justifiable cause to communicate significantly with the child when

able to do so; or

(B) knowingly fails to provide for the care and support of the child when able to do so

as required by law or judicial decree.

344. In re Adoption of C.E.N. , 847 N.E.2d at 27 1

.

345. Id. at 272.