Indiana Law Review


Recent Developments in Family
AND Matrimonial Law

Kathleen E. Rudis*
Michael R. Kohlhaas'

James A. Reed***
KevinP.McGoff****

Introduction

During the survey period, numerous Indiana appellate court decisions were

published involving family and matrimonial law. These decisions will impact

future cases involving topics such as dissolution of marriage, child custody,

support, relocation, paternity, and adoption. The Indiana Supreme Court also
issued its Order Amending Indiana Child Support Rules and Guidelines ("the
Guidelines") in 2009, with revisions to the Guidelines taking effect on January

1, 2010. Thus, this Article reviews developments in Indiana's family and

matrimonial case law during the survey period, as well as the recent amendments

to the Guidelines.'

* Associate, Bingham McHale LLP; professional profile available at http://www.

binghanimchale.com/professionals/index.asp?id=rudis. Since graduating from law school in 2009,

Katie has practiced with the firm's litigation and private client departments, where she represents

clients on an array of matters from family and matrimonial law to long-term care and health care

litigation.

** Partner, Bingham McHale LLP; professional profile available at http://www.

binghammchale.com/professionals/index.asp?id=kohlhaas. Mike concentrates his practice in a

variety ofpersonal representations, including matrimonial law and wealth transfer planning. His

clients include executives, professional athletes, civic leaders, as well as other high-profile and high

net worth individuals.

*** Partner, Bingham McHale LLP; professional profile available at http://www.

binghammchale.com/professionals/index.asp?id=reed. Jim is the founder ofthe matrimonial and

family law group at Bingham McHale and leads the firm's private client department. He is a Fellow

of the American Academy of Matrimonial Lawyers.
**** Partner, Bingham McHale LLP; professional profile available at http://www.

binghammchale.com/professionals/index.asp?id=mcgoff Kevin practices with the firm's litigation

and private client departments, where he represents clients in matters from family and matrimonial

law to legal ethics.

1 . To stay current on recent developments in Indiana family law, please consider subscribing

to the Indiana Family Law Update, a free service provided by the Matrimonial Law Group of

Bingham McHale LLP. The Indiana Family Law Update sends select Indiana cases pertaining to

family law issues, along with brief synopses and analyses, to e-subscribers as cases are released by

the Indiana Supreme Court and Indiana Court of Appeals. To subscribe, send an e-mail to

familylawcases@binghammchale.com with "subscribe" in the subject field or body. Further

updates on developments in Indiana family law are available through the Bingham McHale blog,

<3va//fl6/ef3f/ http://blog.binghammchale.eom/c/departments/private-client/.



1254 INDIANA LAW REVIEW [Vol. 44: 1253

I. Dissolution OF Marriage

The following section reviews noteworthy cases involving marital property
issues, property valuation issues, distribution issues, and other matters related to

the dissolution of marriage.

A. Property Distribution

Distributing marital property raises issues involving how to defme the marital
estate, how to value marital property, and how to distribute marital property.

1. What Should Be Included in the Marital Estate?—Several cases during
the survey period address the issue of whether property is includable in the

marital estate.

a. Vested right to receive future employer-provided health constitutes a

marital asset.—In Bingley v. Bingley,^ the Indiana Supreme Court considered
whether the vested right to receive future employer-provided health insurance

benefits constitutes a marital asset subject to division in divorce proceedings.

At the time of the dissolution proceeding in Bingley, the husband received

a retiree benefit in the form of health insurance premiums, paid by his former

employer, for the remainder of his life. The payments were a non-elective
benefit for the husband as a retiree and were not subject to divestiture, division,

or transfer. The husband could not have elected to receive a larger monthly
pension payment in lieu of the health insurance premium payments. The trial
court entered its dissolution decree, concluding that the benefit was not a marital
asset subject to division.^ The wife appealed, arguing that these benefits are
property as defined by Indiana Code section 31-9-2-98(b)'* and citing a line of
Indiana cases holding that pension benefits are marital assets.^ The Indiana Court
of Appeals affirmed the trial court's decision that the benefit was not a marital
asset, but the Indiana Supreme Court granted transfer.

On transfer, the Indiana Supreme Court reviewed Indiana's broad statutory
definition of marital ''property." The court also focused on the concept of
"vesting" in determining whether a disputed item constitutes marital property,

noting that "vesting is both a necessary and sufficient condition for a right to a

benefit to constitute an asset."^ In the instant case, there was no dispute that the
husband's right to receive future health insurance benefits from his former

employer was not subject to divestiture.
The court rejected the husband's argument that the health insurance benefits

were not an asset because he could not transfer or alienate them, and because the

value of the benefits was speculative.^ Although the court agreed that these

2. 935N.E.2d 152 (Ind. 2010).

3. Id at 154.

4. Ind. Code § 3 1 -9-2-98(b)(2) (2011) (defining "property" as "the right to receive pension

or retirement benefits that are not forfeited upon termination of employment or that are vested").

5. See Bingley, 935 N.E.2d at 155.

6. Id at 155.

7. Id at 156-57.



2011] FAMILY AND MATRIMONIAL LAW 1255

characteristics ofthe asset could present challenges to a trial court in dividing the

overall marital estate, it did not alter the benefits' status as a marital asset.^ The

court also provided some general guidance on how such benefits might be
valued, underscoring that valuation rests with the discretion of the trial court.

Finally, the court noted that the husband's argument that his health care benefits

were illiquid and subject to risk "[might] be sufficient grounds" for the trial court

to deviate in the husband's favor in the overall division of the marital estate.^

The trial court's decree was reversed, and the matter was remanded for further

proceedings that included the valuation of the husband's benefit and

reconsideration of the overall division of the marital estate.

Justice Dickson dissented in Bingley to share his belief that Indiana's

statutory definition of"property" is narrower than the majority construed it.'^ He
also expressed public policy concerns about the number ofpeople, especially in
the military, who receive lifetime health care benefits that could be implicated
by the court's decision: "The resulting inclusion of its present value as marital

property would likely preclude a divorcing military retiree from retaining any

other marital property .... I seriously doubt that our legislature intended such

potentially catastrophic results."' ' Justice Dickson was also concerned that the
court' s holding could be easily expanded to non-monetary future benefits that are

difficult to value—for instance, a retired automobile manufacturer's right to
future car discounts or a former airline employee's right to future free flights.'^

b. Real estate held as a life estate should not be included in the marital

estate.—In Leever v. Leever,^^ the Indiana Court ofAppeals considered whether
the trial court erred when it placed certain real estate into a constructive trust
instead of assigning the real estate a value and including it in the marital estate.

In Leever, the husband and wife were married in 1977, and the wife filed a

petition for dissolution in 2007.'"* In 1999, the husband's parents ("Parents") had

quitclaimed their home to the husband and wife.'^ Parents continued to live in
the home and paid the mortgage, utilities, homeowners' insurance, real estate
taxes, and other expenses.'^ After the final hearing on the dissolution, the trial

court requested that the parties submit a brief on the issue of whether the home
should be included in the marital estate and, if so, how it should be divided.'^
The trial court issued its decree, awarding the home to the husband subject to a
constructive trust in favor of his parents.'^

8. Id. at 157.

9. Mat 158.
10. See id. at 158-60 (Dickson, J., dissenting).

11. Mat 159.
12. Id at 159-60.

13. 919 N.E.2d 118 (Ind. Ct. App. 2009).

14. Mat 121.
15. Id

16. Id

17. Id

18. Mat 121-22.



1256 INDIANA LAW REVIEW [Vol. 44: 1253

On appeal, the wife contested the placement of the home in a constructive
trust and "maintain[ed] that the trial court abused its discretion by refusing to
include the real estate in the marital estate and divide it between the parties."'^

Thus, the court first considered whether the constructive trust was proper. The
court found that a confidential relationship existed between Parents and the

husband and wife and that Parents relied on the husband's and wife's oral

promise that they could live in the home as long as they needed.^^ The court held
that to allow the husband and wife to dispossess Parents of their home would
"permit them to be unjustly enriched by the sale price or rents and profits
accruing during the remainder of . . . [Parents' lives]."^^ The constructive trust
was therefore deemed proper.^^

Next, the court considered if it was an error to omit the home from the
marital estate. The court concluded that with the imposition of the constructive
trust, the husband and wife were essentially owners ofa remainder interest in the

property, subject to Parents' constructive trust life estate.^^ The court ruled that
the parties' remainder interest should have been included in the marital estate and

assigned a value, with this value incorporated into the division ofmarital assets.^"*

The judgment of the trial court concerning the imposition of a constructive
trust was affirmed, but the decision to omit the home from the marital estate was
reversed. The case was remanded with instructions to assign a value to the home,
include it in the marital estate and "re-divide the marital estate consistent with

Indiana Code section 31-15-7-5."^^

2. Property Valuation Issues: Valuation ofMinority Ownership Interests

.

—
In Alexander v. Alexander^^ the Indiana Court of Appeals considered the

valuation of minority ownership interests.

The husband and wife married in 1976.^^ During the marriage, the wife's
parents gave the wife a five percent limited partner interest in an entity that was
owned exclusively by various members of the wife's family ("Bush Farms").^^
Bush Farms's assets included approximately 1339 acres of land. During the
dissolution proceedings, one of the contested issues was the value of the wife's
interest in Bush Farms.^^

After the final hearing, the trial court made specific findings on Bush Farms,
including the following:

1 . the entity ' s partnership agreements provided that a limited partner could

19. Id. at 122.

20. Id. at 123.

21. /J. at 124.

22. Id

23. Id

24. Id

25. Id. at 125.

26. 927 N.E.2d 926 (Ind. Ct. App.), trans, denied, 940 N.E.2d 824 (Ind. 2010).

27. Id at 929.

28. Id. at 930.

29. See id. at 936.



2011] FAMILY AND MATRIMONIAL LAW 1257

not bring an action forcing partition of the Bush Farms's land;
2. the two general partners (the wife's father and mother) maintained

exclusive control over Bush Farms, leaving the wife no decisionmaking
authority;

3. for entity matters requiring limited partner approval, a ninety percent

supermajority of the limited partners was required;

4. any contemplated sale ofownership by a limited partner triggered a right

of first refusal for the other partners;

5. if a limited partner's interest was assigned, the assignee would have no
right to inspect entity books, vote, or gather information about the entity; and

6

.

the partnership agreement could not be modified without approval by the

two general partners and a ninety percent supermajority ofthe limited partners.^^

At trial, the wife's expert applied a twenty-five percent minority discount and

a fifteen percent marketability discount to the wife's interest in Bush Farms.^*
In reaching its conclusion on value, the trial court substantially adopted the

methodology of the wife's expert, including the applicable discounts. The
husband appealed, arguing that minority discounts and marketability discounts

should not have been applied.^^ In his argument, he relied upon the WenzeP^ and

Hanserf^ cases, which stand for the proposition that such discounts are

inappropriate when a majority shareholder—or the corporation—is the buyer.
In considering whether discounts were appropriate, the Indiana Court of

Appeals acknowledged the likelihood that at some point, the wife would either
inherit her aging parents' control interest in the entity or would sell her interest
to the controlling shareholders ofBush Farms.^^ Either ofthese scenarios would
seem to support the husband's argument that discounts on the wife's interest in
Bush Farms were inappropriate. Nevertheless, the court rejected the husband's
argument, noting that no immediate sale by the wife was presently contemplated
and that the mere possibility—not certainty—that the wife's interest in the entity
might unite with the controlling interest in the future was insufficient to deny the
trial court its discretion to apply discounts to the present value of the wife's

interest.^^

3. Distribution Issues.—Cases regarding distribution issues can arise when
a party to dissolution believes their spouse dissipated assets.

a. Notfiling ajoint tax return constituting dissipation.—In Hardebeck v.
Hardebeck,^^ the Indiana Court of Appeals considered whether the wife's pre-

separation decision not to file a joint tax return with her husband constituted

"dissipation" in terms of the added resulting tax liability to the husband.

30. Mat 930-31.
31. Mat 931.
32. Id. at 936.

33. Wenzel v. Hopper & Galliher, P.C, 779 N.E.2d 30 (Ind. Ct. App. 2002).
34. Hansen v. 75 Ranch Co., 957 P.2d 32, 41 (Mont. 1998).

35. Alexander, 927 N.E.2d at 938.

36. Id at 939.

37. 917 N.E.2d 694 (Ind. Ct. App. 2009).



1258 INDIANA LAW REVIEW [Vol. 44: 1253

The husband and wife married in 1965.^^ During the marriage, the parties
had no children together, and the husband was the primary income eamer.^^ It
was the parties' practice during most ofthe marriage for the husband to turn over
his paycheck to the wife, who then paid bills and otherwise managed the marital
finances."^^ However, when the parties' relationship became strained, the
husband began to alter this paycheck practice; he would cash his check, retain
some money for himself, and then give the balance to his wife to pay bills. "^^ The
trial court found that because the wife "resented this change," she refused to file

taxes jointly with the husband in 2006 and 2007."^^ The trial court found that
filing separately cost the husband an additional $8600 in taxes."^^ The husband
filed for divorce in 2008.

'^'^

After a final hearing, the trial court issued its decree, which adopted

substantially all of the husband's proposed findings but made some edits and
additions to the husband's submitted findings.'*^ The trial court concluded that
the wife's refiisal to file a joint tax return during the marriage constituted

dissipation because it was done out of spite."^^
On appeal, the wife assigned error to the nearly complete adoption of the

husband's proposed findings as well as the dissipation finding."^^ On the
dissipation issue, the court of appeals noted that dissipation related to an added

tax liability for not filing a joint return was "a matter of first impression in
Indiana.'"^^ However, reviewing Indiana's dissipation laws as well as some cases
from foreignjurisdictions, the court concluded that the finding ofdissipation was
not an abuse of discretion."^^ The court held that failing to file jointly was not
dissipation per se, but instead depended upon the facts of the case.^^ Here, the

evidence supported the trial court's conclusion that the wife had no legitimate

reason not to file jointly with the husband (e.g., specific concerns about the

husband not declaring income), and that she was motivated instead by spite.

With regard to adopting the husband's proposed findings, the court noted that

here, too, the practice is discouraged but not error per se.^' The court expressed
its feeling of reassurance in the fact that the trial court had made changes to the
husband's proposed findings. In the court's view, these "changes to address what

38. Id. at 696.

39. Id.

40. Id at 697.

41. Id

42. Id

43. Id

44. Id at 696.

45. Mat 699.
46. Id at 702.

47. Id at 698-99.

48. Id at 700.

49. Id at 700-02.

50. Mat 701.
51. Mat 698-99.



20 1 1 ] FAMILY AND MATRIMONIAL LAW 1 259

. . . [the trial court] deemed to be deficiencies or inaccuracies"^^ suggested that
the trial court had reviewed the husband's proposed findings with care.

B. 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 several notable cases from the

survey period.

1. Court Order Encouraging Taking Children to Church During Parenting

Time.—In Finnerty v. Clutter,^^ the Indiana Court ofAppeals considered whether
a trial court abused its discretion by issuing a parenting time order that

encouraged—but did not require—^the father to take the children to church during
his parenting time periods.

^"^

The facts in Finnerty revolved around a mother and father who divorced with
two young children in 2004.^^ Their divorce decree provided for joint legal

custody of the children; the mother was deemed the "primary residential
custodian."^^ At issue during the proceedings were the religious implications of
the decree. Specifically, the parents began attending a Catholic church with their

children while they were still married. After the divorce, the mother continued

to attend and otherwise participate in church activities and events.^'' At some
point, a dispute arose over whether the father's weekend parenting time should
end at 7:00 p.m. on Sunday so that he could take the children to "attend Sunday

dinners with extended family," or at 3 : 00 p.m., so that the mother "could take the

children to Sunday evening mass."^^ The dispute was submitted to the trial court
for resolution.

After a hearing, the trial court ordered that the father's weekends would be
"from Friday 4:00 p.m. to Sunday at 7:00 p.m."^^ The trial court's order also
stated, "Church attendance on the [f]ather's weekend shall be his prerogative.
The [cjourt will recommend, but will not require, the children [to] attend church
during the [f|ather's parenting time, if it has been their practice in the past to do

so."^^ The mother appealed, arguing that the decree made her the "custodian" of
the children by virtue of its language that she would be "the primary residential
custodian." That custodian designation, the mother further reasoned, gave her

the authority to determine the children's religious upbringing under Indiana Code
section 31-17-2-17(a).^^

52. Id at 699.

53. 917 N.E.2d 154 (Ind. Ct. App. 2009), trans, denied, 929 N.E.2d 784 (Ind. 2010).

54. Mat 155.
55. Id

56. Id at 156.

57. Mat 155.
58. Id

59. Id

60. Id

61. Id. at 155-56. This portion of the Indiana Code states that "[ejxcept ... as otherwise



1260 INDIANA LAW REVIEW [Vol. 44: 1253

Ultimately, the court of appeals rejected the mother's argument, noting that

the decree expressly awarded the parties "joint legal custody" of the children.^^

As such, Indiana Code section 3 1-1 7-2-1 7(a) was inapplicable.^^ Because the
parties share responsibility for the children's religious upbringing under a joint

legal custody order, the trial court's order was not inappropriate.^"^ The court of
appeals concluded that the trial court properly attempted to balance the father's

"desire for uninterrupted parenting time" with the mother's "desire to provide the

children with religious training.
"^^

2. Failure to Appear at Final Hearing Due to Fear ofSpousal Abuse Leads
to Post-Decree Pleadings Viewed as Petition to Modify.—In Oberlander v.
Handy,^^ the mother—who apparently failed to appear at her own fmal hearing
because she had fled to South Carolina to avoid the alleged abuses of the

father—was precluded from having a decree that awarded custody of the child
to the father set aside.^^ The Indiana Court ofAppeals reviewed whether the trial
court should have construed the mother's post-decree pleadings as a petition to

modify custody and revisited the custody issues accordingly.^^

The mother and father in Oberlander began dating in 2005, and the mother
gave birth to their child in 2006.^^ The parties subsequently married, but the
mother filed for divorce in 2007.^^ A lengthy history of abuse, stalking of the
mother, and other criminal misconduct by the father was apparently intertwined
in the parties' relationship. While the divorce was pending in early 2008, the
mother and child moved to South Carolina, where the mother had family, out of
fear that the father would hunt her down "[a]s he had in the past."^'

The trial court set the divorce for fmal hearing on July 22, 2008.^^ The father
appeared, but the mother did not. The resulting decree, based solely upon the
evidence ofthe father's testimony, awarded the father all ofthe marital property

except for the mother's car. Furthermore, it awarded custody of the child to the

father.^^ On August 2 1 ofthat year, the mother filed a request for relief from the
decree, alleging that the father committed perjury at the final hearing.^"^ The trial

agreed by the parties in writing at the time of the custody order ... the custodian may determine

the child's upbringing, including the child's education, health care, and religious training." IND.

Code §3 1-1 7-2-1 7(a) (2011).

62. Id. at 156-57.

63. M at 156.
64. Id. at 156-57.

65. Id at 157.

66. 913 N.E.2d 734 (Ind. Ct. App. 2009).

67. Id at 739.

68. Id at 738-39.

69. Id at 735.

70. Id

71. /J. at 736.

72. Id at 737.

73. Id

74. Id



2011] FAMILY AND MATRIMONIAL LAW 1261

court set the matter for hearing and asked the Indiana Department of Child

Services (DCS) to investigate.^^ DCS recommended that the mother have
custody ofthe child, subject to the father's supervised parenting time.^^ After a

hearing, however, the trial court (failing to find fraud) did not disturb its decree

other than to change custody to joint custody, with the father continuing to have

primary physical custody.^^ The mother appealed.

On appeal, the court was sympathetic to the mother's situation. Ultimately,
the court concluded that it "cast no aspersions upon her stated reasons for her

failure to appear [at the final hearing], but the simple fact is that she was not
there and the trial court was entitled to proceed in her absence."^^ Therefore, the
trial court's denial ofreliefwas affirmed.^^ However, the court also volunteered
that it believed "the trial court should have treated . . . [the mother's] motion as

a motion to modify the custody arrangement set forth in its initial order."^^ Thus,

the matter was remanded so that the trial court could "revisit this case and weigh
all ofthe evidence to determine whether a modification" would be appropriate.^^

3. Change ofCircumstance Required to Make a Change in Custody.—In In
re Marriage ofJulie C v. Andrew C,^^ the Indiana Court ofAppeals considered
whether "when modifying custody, the change in circumstances required by
Indiana Code section 31-17-2-21 need ... be so decisive in nature as to make a
change in custody necessary for the welfare of the child."^^

The parties in Julie C married in 1995 and had two children born in 2002
and 2004.^"^ When the parties divorced in 2006, the agreed dissolution decree
provided for "joint legal custody . . . with [the] [m]other having primary physical

custody."^^ It also provided parenting time for the father in the amount of three
days a week and every other weekend.^^ The father subsequently filed for a
modification of physical custody, requesting more parenting time; the mother
cross-petitioned for a modification of legal custody and child support.^^ At the
court's request, a domestic relations evaluator wrote a report recommending that
the "[m]other and [fjather continue to share joint legal custody," "the children

continue to reside in [the] [m]other's primary care," and "[the] [fjather have

greater parenting time."^^

75. Id

76. Id

77. Id

78. Id at 738.

79. Id at 739.

80. Id

81. Id. (emphasis in original).

82. 924 N.E.2d 1249 (Ind. Ct. App. 2010).

83. Id at 1252.

84. Id

85. Id

86. Id

87. Id

88. Mat 1253.



1 262 INDIANA LAW REVIEW [Vol. 44: 1253

At the time of the petition, the father was living with his fiancee, who also
had "joint physical custody of her two children."^^ At the hearing, the fiancee
testified that it was important that the father's children and her children be
together as much as possible to help form a bond. The trial court found that
"[tjhere ha[d] been a substantial change in circumstances and the facts set forth

in . . . [Indiana Code section] 31-17-2-21" and that it was in the children's best
interests for the parents "to share joint legal custody and that [the] [fjather have

additional overnight parenting time."^^ The increase amounted to fifty percent
of overall parenting time.

The court of appeals found that this increase in the father's parenting time
amounted to "a defacto modification of custody to joint physical custody."^'

The court found that the father's upcoming marriage, along with other factors
such as the children's desire to spend more time with the father and the efforts
to accomplish a blended family, constituted a substantial change in circumstances

sufficient to change the original physical custody order.^^ The court noted that
the legislature changed the requirements of changing a custody order so that it

is no longer a requirement to show that an existing custody order is
"unreasonable;" there simply needs to be a substantial change in the statutory

factors and a finding that modification is in the children's best interests.
^^

II. Child Support Rules and Guidelines

The following section starts by reviewing the recent changes to the Indiana
Child Support Rules and Guidelines (the "Guidelines"). The section then
continues by reviewing noteworthy cases on the topic of child support and the

Guidelines.

A. Amendments to the Guidelines'^'^

In 1989, the use of the Indiana Child Support Guidelines became

mandatory for all cases involving the establishment or modification of

child support. The public policy behind the Guidelines had many facets,
but one substantial objective was to provide more predictability and
continuity in child support calculations, from court to court, and from

case to case.^^

89. Id. at 1252-53.

90. Id. at 1254-55.

91. Id. at 1256 (emphasis in original).

92. See iddXnSl-59.

93. Id at 1258 (citing Meade v. Levett, 671 N.E.2d 1 172, 1 176 n.2 (Ind. Ct. App. 1996)).

94. This is not an exhaustive description of every revision to the Guidelines, and any reader

seeking that level of detail should consult the court's order amending the Guidelines directly.

95. Michael R. Kohlhaas & James A. Reed, A BriefSurvey ofthe New Amendments to the
Indiana Child Support Rules & Guidelines, RES GESTAE, Nov. 2009, at 30, 30, available at:
http://www.binghammchale.com/public/viewArticle.asp?id=86.



2011] FAMILY AND MATRIMONIAL LAW 1263

On September 15, 2009, the Indiana Supreme Court issued an official order
amending the Guidelines. These revisions to the Guidelines became effective on

January 1,2010.'^

Among the most significant changes to the Guidelines are as follows :^^

1. Changes to Gross Weekly Income and Added Caution for Imputing
Income.—

The new Guidelines^^^^ include revisions for addressing Social
Security income as well as handling imputation of income. Guideline

3(A)(1) is revised to provide that Social Security disability benefits paid

for the benefit of a child are included in the disabled parent's [wjeekly

[gjross [i]ncome; however, that parent is also entitled to a credit for the

amount of that benefit.

Guideline 3(A)(3) is revised to provide that potential income should

be imputed to a parent only when the unemployment or
underemployment is "without just cause." The [cjommentary to this

section is also revised to provide that where the underemployment or

unemployment is the result of a disability, health issue, excessive child

care costs or similar circumstances, it may be improper to impute any
income to the parent. This revision seemingly modifies the widely used

past of imputing an amount no less than minimum wage to an
unemployed or underemployed parent. The [cjommentary also is revised

to dovetail with recent case law discouraging imputing potential income

to incarcerated parents.
^^^^

The old Guidelines used a multiplier that reduced a parent's

[wjeekly [gjross [ijncome depending upon the number of subsequent
children. Though the net effect on the child support obligation remains
the same, under the new Guidelines, the parent's [wjeekly [gjross
[ijncome is not reduced; instead, a new line 1(A) is added to the [cjhild
[sjupport [ojbligation [wjorksheet that produces a credit against

[wjeekly [gjross [ijncome. Additionally, the new credit line allows for
up to eight subsequent children, whereas the old Guidelines provided

multipliers for only five or fewer subsequent children. The impact on
the final support amount as a result of subsequent children remains

unchanged.
^^^

96. Id.

97. The following subsections, discussing the most significant changes to the Guidelines, are

abstracts from an article by Michael Kohlhaas and James Reed, who are likewise authors hereto.

For a more detailed discussion of the 2010 amendments to the Guidelines, please see id.

98. For ease ofdiscussion, this article refers to the Guidelines prior to the recent amendment

as "the old Guidelines" and the amended version as "the new Guidelines."

99. See, e.g., Lambert v. Lambert, 861 N.E.2d 11 76 (Ind. 2007); see also Becker v. Becker,

902 N.E.2d 818 (Ind. 2009).

100. Kohlhaas & Reed, supra note 95, at 30.



1264 INDIANA LAW REVIEW [Vol. 44: 1253

2. Elimination ofthe Child Support Plateaufor High Income Earners.—
One ofthe more significant changes to the Guidelines can be found

in Guideline 3(D). The new Guidelines retain a substantially similar
means of calculating the parties' [c]ombined [wjeekly [ajdjusted
[ijncome. Likewise, the [c]ombined [w]eekly [ajdjusted [ijncome is still

plugged into the Guidelines' "Schedules Table" to determine the parties'

[bjasic [cjhild [sjupport [ojbligation, which is simply a function of (1)
the parents' [cjombined [wjeekly [ajdjusted [ijncome; and (2) the

number ofchildren. However, under the old Guidelines, the [sjchedules
maxed out at $4,000 per week (or $208,000 per year) of [cjombined
[wjeekly [ajdjusted [ijncome. For income levels in excess of$4,000 per

week, the Guidelines applied a complicated formula that had the effect

of causing support amounts to plateau as income increased further.

Under the new Guidelines, the [sjchedules max out at $10,000 per
week (or $520,000 per year) of [cjombined [wjeekly [ajdjusted
[ijncome. Further, for income levels in excess of $10,000 per week, the

plateau-causing formula has been jettisoned in favor of a simple linear

calculation. For all income above $10,000 per week, the [bjasic [cjhild

[sjupport [ojbligation will increase at a fixed percentage of the income

above $10,000 per week, depending upon the number of children {e.g.,
7.1 percent for one child, 10 percent for two children, 1 1.5 percent for

three children, 12.9 percent for four children, etc.).

The new Guidelines also provide that, beyond $ 1 0,000 per week, the
support obligation increases in a linear fashion at 7.1 percent of

combined weekly income for one child. So, there never is any "plateau"

in support obligation. Everything else held constant, child support for

someone earning $20,000 per week will be roughly twice what it would
be earning $10,000 per week. This is a substantial departure from the

operation of the old Guidelines.
^^^

3. New Rebuttable Presumption That "Negative " Support Orders Require
Support Paymentsfrom Custodial Parent to Non-Custodial Parent.—

The new Guidelines contain added language in Guideline 3(F)
providing that[J when a child support calculation produces a "negative"
support amount for the non[Jcustodial parent, there is now a rebuttable
presumption under the new Guidelines that the custodial parent shall pay
to the noncustodial parent an amount equal to the "negative" support

figure. This effectively overrules the interpretation ofthe old Guidelines

set forth in Grant v. Hager. . . .'^^

4. Other Notable Changes.—In addition to the revisions of the Guidelines

101. /<i. at 30-31 (emphasis in original).

102. Id. at 31 (citation omitted).



2011] FAMILY AND MATRIMONIAL LAW 1265

listed above, there are many other notable changes. Such changes include: (1)
guidance regarding Social Security benefits; (2) "new exceptions to [the] rule
that child support modifications may relate back no earlier than date petition to
modify is filed;"^^^ (3) details on allocating "controlled expenses;" (4) a new
health care guideline and worksheet; (5) the movement of "extraordinary
expenses" and "accountability and tax exemptions" from commentary to
guideline; and (6) a "[n]ew provision on rounding to [the] nearest doUar."'^"^ The
new Guidelines also include revisions related to the topics of elementary and
secondary education, other extraordinary expenses, accounting, and tax

exemptions.
^^^

B. Retroactive Child Support Preceding the Date ofFiling

a Petitionfor Dissolution Is Improper

In Boone v. Boone, ^^^ the Indiana Court ofAppeals considered whether it was
error for a divorce court to issue a child support order that was "retroactive to a
date preceding the filing of the petition for dissolution" ^^^ of marriage if the

parties were living separately for that period of time. The mother and father in
Boone married in 1998 and had one child together. ^^^ The mother and father
physically separated in 2002, but neither filed for divorce at that time.^^^ After

the 2002 physical separation, the father began informally sending money to the
mother every other week until June 2006.^^° At that time, the father filed a
petition for dissolution in Illinois, which was ultimately dismissed due to the
mother's Indiana residency.^

^

^ In November 2007, the father filed a petition for
dissolution in Lake County, Indiana.

^'^

At the final hearing in late 2008, the mother asked the trial court to award
child support retroactive to June 2006—the date the father stopped making the
informal support payments to the mother—even though this predated the filing
ofthe petition for dissolution by about fifteen months.^ ^^ After the final hearing,
the trial court granted the mother's request by issuing a retroactive support order
to June 2006, thereby generating an immediate support arrearage of about

$14,000 to which the father appealed.^^^

In its analysis, the court of appeals noted that it was a matter of first

103. Mat 32.
104. See id. at 31-37.

105. See id. at 37.

106. 924 N.E.2d 649 (Ind. Ct. App. 2010).

107. Mat 650.
108. Id

109. See id.

110. See id. at 650-51.

111. Id

112. Mat 651.
113. Id

114. Id



1266 INDIANA LAW REVIEW [Vol. 44: 1253

impression in Indiana as to whether a trial court in a divorce action has the

authority to issue a retroactive support order for a period before the date the

petition for dissolution was filed. ^ ^^ The court recognized the common law duty
to support children; however, the court observed that neither statutes nor the

Guidelines authorize a retroactive order of this nature."^ In addition, the court

noted well-settled case law that such a modification may not be made retroactive
prior to the date a petition to modify is filed, absent limited and unusual

exceptions.^ *^ Therefore, Boone held that the trial court abused its discretion in
issuing its support order, and the decision was reversed and remanded to be
reformed consistent with the opinion.

^^^

C Proper Deductionsfrom Weekly Gross Income

In Ashworth v. Ehrgott,^^^ the Indiana Court of Appeals reviewed a

comprehensive child support order, considering whether the trial court erred with

respect to its deduction of alimony payments from the father's weekly gross

income, its failure to deduct health insurance payments for children, and its

improper inclusion of school expenses in the order.
^^^

In Ashworth, the father and mother had two children and were divorced in

Tennessee in 2006.'^' The trial court ordered the father to pay the mother

$306,000 of alimony in monthly installments of $1500.^^^ The father was also

ordered to pay $40,000 for the mother's attorney's fees in yearly installments of
$8000.^^^ The mother had sole legal and physical custody of the children and

was to receive $2500 per month in child support from the father. ^^"^ This figure

was to be recalculated in accordance with Tennessee's child support guidelines
in 2008.'^^ The father was also to provide health insurance coverage for the

children.
^^^

The mother moved to Indiana in 2008.^^^ In 2008, the father unilaterally
reduced his monthly child support payments to $1 160, the amount provided in

the father's revised Tennessee child support worksheet. '^^ The father then moved

115. Mat 652.
1 1 6. Id. at 653. By contrast, the court noted the paternity statute, which expressly authorizes

the relation back of a support order to the child's date of birth. Id.

117. Mat 654.
118. Mat 655.
1 19. 934 N.E.2d 152 (Ind. Ct. App. 2010).

120. M at 155.
121. M
122. Id

123. Id

124. Mat 156.
125. Id

126. Id

127. Id

128. Id



2011] FAMILY AND MATRIMONIAL LAW 1267

to California, and the mother filed a petition to register the Tennessee child

support order in Indiana. '^^ The Indiana court entered a child support income
withholding order directing the father's employer to withhold a weekly amount

adding up to $2500 per month.
^^^

In April 2009, the father petitioned the court

for a stay of the income withholding order.
'^^ The court denied the petition but

held a hearing in June 2009 on the child support order.
^^^

Following the June 2009 hearing, the trial court entered a detailed order

modifying the father's child support obligation. The court found that the father's
child support should be $500.75 per week, with an added child support obligation

of $23 1 per week for educational expenses for the minor children. '^^ The father
then filed a motion to vacate the order, arguing that some of the educational
expenses were counted twice. '^"^ The court subsequently entered a revised order
of $612.10 per week.^^^ In response, the father filed a motion to correct errors;

because the court never ruled on this motion, it was deemed denied.
On appeal, the father raised numerous issues. He first contended that the

trial court improperly included the amount he paid as alimony in his weekly gross
income for purposes of calculating child support. Using Indiana law, the court

determined that the monthly $2500 payments were maintenance payments and

not part of a property division.
^^^ The court then determined that the $40,000

attorney's fee payments were part of a property division.
'^^

This issue was
remanded for a recalculation ofthe father's weekly gross income.

^^^ The father
then challenged the trial court's failure to award him credit for the children's
health insurance premiums. The court reversed and remanded with instructions
to provide the father with this credit.

^^^

The father also contended that the trial court erred in failing to reduce his
child support obligation based upon his higher tax bracket. The trial court's
calculation found that the father's actual tax rate differed from Indiana's

presumed rate by 10.72% and then deducted this from his weekly gross
income. '"^^ The court ofappeals found these calculations correct and affirmed the
trial court's order in this regard.

^"^^

Next, the father argued that the trial court erred by failing to give him credit
for travel expenses associated with exercising parenting time. Citing the

129. Id.

130. Id.

131. Id

132. Id at 157.

133. Id

134. Id

135. Id

136. Id at 158-59.

137. Id at 161-62.

138. Mat 161.
139. Id at 162.

140. Id at 163.

141. Id



1268 INDIANA LAW REVIEW [Vol. 44:1253

commentary to the Guidelines, the court ofappeals stated that the trial court had
discretion to deviate from Guideline amounts to take these expenses into
consideration.

^"^^ The trial court had previously determined that the father's
financial resources did not justify reducing the child support obligation, and the

court of appeals held that the trial court did not abuse its discretion in failing to

credit the father for his travel expenses.
^"^^

The father then challenged the trial court's award ofhis daughter's preschool
expenses. Even though the mother was not working, she had included these
expenses as a work-related child care expense. As there was no evidence that the
mother had worked or searched for a job (thus requiring full-time care for her
child), the appellate court found that including these expenses ... an abuse of

discretion.
'"^"^

Similarly, the father challenged the order requiring him to pay
private school tuition for his son. Finding that the parties did not agree on

private school for their children, and considering Guideline 8, the court held that

the trial court's order requiring the father to pay private school tuition was also
an abuse of discretion.

'"^^

In sum, the Ashworth court reviewed the trial court's comprehensive child

support order and determined that the trial court erred with respect to its

deduction ofalimony payments from the father's weekly gross income, its failure

to deduct health insurance payments for children, and its improper inclusion of

school expenses.
^"^^ The court affirmed the order in all other respects.

D. Parenting Time Credit and Inclusion ofIrregular Bonus Income

In In re Paternity of S.G.H.,^"^^ the Indiana Court of Appeals considered

whether the trial court erred in calculating child support by awarding both a

parenting time credit and the abatement ofsupport during father's parenting time.

The court also considered whether the trial court erred by including father's
irregular bonus income in the child support calculation.'"^^

In S.G.H., the mother and father had a child together. Paternity and child

support were established in 1997.'"*^ In 2007, the mother filed a petition to

modify child support.
'^^ The trial court set a base child support obligation for the

father of $131 per week, along with provisions concerning the father's bonus

income that apparently resulted in some confusion in its interpretation.'^' Part
of the root of the confusion was that the father typically received two different

142. Id at 163-64.

143. Id at 164.

144. Id

145. Id at 165-66.

146. Id at 155.

147. 913 N.E.2d 1265 (Ind. Ct. App. 2009).

148. Id at 1266.

149. Id

150. Id

151. See id.



2011] FAMILY AND MATRIMONIAL LAW 1269

types ofbonuses: (1) semiannual bonuses of$20,000, which the father received

each January and July; and (2) "windfall bonuses," which the father received

every two years or so, and which were unpredictable in amount.
^^^

The trial court held a hearing to clarify its order and address a petition filed

by the father to modify summer parenting time. Following that hearing, the trial
court issued an order stating that the father's annual bonuses were already

calculated into the court's base child support calculation, and that the father was
obligated to report his windfall bonuses upon receipt.^" Further, if the father's
windfall bonus would result in a twenfy percent change in the father's child
support obligation, he would be obligated to pay the resulting difference in the
support amount. ^^"^ In addition, the trial court granted the father's request to

modify the summer parenting time schedule and ordered that the father's support
obligation abate during his summer parenting time, citing Indiana's parenting
time guidelines.

^^^ The mother appealed both the handling of the windfall
bonuses and the summer parenting time abatement.

The court of appeals agreed with the mother in both respects. As to the
abatement, the court believed this was a relic of the old Guidelines prior to the
establishment ofthe parenting time credit.

^^^
Moreover, it was improper for the

trial court to award the father both a parenting time credit in his base support
obligation and then to abate support during summer parenting time.^"

As to the windfall bonuses, the court referenced the commentary in the Child
Support Guidelines for handling the irregular bonus income.

^^^
With that

guidance, it was inappropriate to include the father's windfall bonuses in the
child support calculation only if they caused the support amount to change by at
least twenty percent. ^ ^^ In effect, the appellate court concluded that the trial court

erroneously applied a modification standard to the windfall bonuses.

E. Child Support Arrearage Accruedfor Now-Adult Child

In Hicks V. Smith,^^^ the Indiana Court of Appeals considered whether the

trial court abused its discretion in awarding a judgment for child support

arrearage to the mother rather than to the now-adult child for whom the child
support arrearage had accrued. The parties in Hicks were parents to a son bom
in 1985.'^^ Their marriage was dissolved by decree in 1989.'^^ On March 20,

152. Id

153. Id

154. Mat 1267.
155. Id

156. Id at 1267-68.

157. See id.

158. Mat 1268-69.
159. Id

160. 919 N.E.2d 1 169 (Ind. Ct. App.), trans, denied, 929 N.E.2d 791 (Ind. 2010).

161. Mat 1170.
162. Id



1270 INDIANA LAW REVIEW [Vol. 44:1253

1992, the court entered an order granting sole custody of the son to the mother,

giving the father "reasonable and liberal visitation," and requiring the father to

pay $47 weekly in child support. ^^^ On March 22, 1992, the father absconded
with the son.'^"^

During the period when the father and son were out of the Indiana
jurisdiction, the father did not pay child support as required by the order. On
April 30, 1993, the court entered an order finding the father in contempt and

entered a judgment of $3029, representing arrearage and attorney fees.^^^ On
December 8, 1994, the court amended the order to reflect an extra $4418 in
arrears, which led to a final judgment of $7447.^^^ The father was also charged
with a crime for absconding with the son; he was a fugitive until August 2008,
when he appeared in court to answer the criminal charges. At this point, the
mother brought a motion to collect the December 8, 1994 judgment plus interest
and petitioned for support arrearage that had since accrued.

'^^

In response to the mother's petitions, the trial court ordered the father to pay

interest on the judgment and to be responsible for an additional arrearage from

the date ofjudgment through May 2, 2006—the son's twenty-first birthday—of
$27,965 plus interest. '^^ The court denied the father's motion for relief from
judgment as well as his "request to have any and all money paid toward
satisfaction of any said judgments held in trust for the child."^^^ The father
appealed.

In its discussion ofthe nature ofarrearage and the purposes of child support,

the court of appeals stated that "once fiinds have accrued to the child's benefit,

the trial court lacks the power to reduce, annul, or vacate the child support order
retroactively."^^^ The court noted the two exceptions to this rule: (1) where
parties have agreed to and executed other payment methods that substantially

comply with the decree;
^^'

and (2) "where the obligated parent, by agreement

with the custodial parent, 'takes the child into his or her home, assumes custody,

provides necessities, and exercises parental control for such a period oftime' that

a permanent change of custody is effected."^^^ The court found that neither
exception applied to the situation at hand.^^^

Next, the court turned to the unique facts of this case, as it was undisputed

163. Id.

164. Mat 1170-71.
165. Mat 1171.
166. Id.

167. Id

168. Id

169. Id

170. Mat 11 71-72 (citing IND. Code § 3 l-16-16-6(a) (201 l);Whitedv.Whited, 859 N.E.2d
657,661 (Ind. 2007)).

171. Id at 11 72 (citing ff/z/^eJ, 859N.E.2dat662;Payson v. Payson,442N.E.2d 1123, 1129

(Ind. Ct. App. 1982)).

172. Id (citing Whited, 859 N.E.2d at 662)).

173. See id. at 1173-75.



2011] FAMILY AND MATRIMONIAL LAW 1271

that the father never paid any child support and the mother never had physical

custody of the son due to the father absconding with him. The court stated that

there were three people who could have claimed the arrearage. '^"^ The father
would not succeed; despite having supported the son, he was "clearly not entitled

to have the arrearage forgiven because of his wrongdoing in taking custody of.

. . [the son] in willful violation of a court order."^^^ The mother was the next

option. Although she did not provide financial support, the court noted that

"being unaware ofhis whereabouts, [she] also did not have the option to support

him."'^^ The third option—the son—was presumably fully supported by the
father and therefore did not have to support himself. Weighing these three

options, the court concluded that there was no authority for awarding the
arrearage to the son and that the trial court did not abuse its discretion in

awarding the amount to the mother.
'^^

III. Issues Pertaining to Relocation and Out-of-State Parents

Issues pertaining to relocation and out-of-state parents—including relocation
requests, attempts at gaining ajurisdictional advantage, maintaining a substantial

connection so as to retain jurisdiction in Indiana, and enforcing a foreign child

support order—arise from time to time in Indiana family law. The following
section reviews several such noteworthy cases from the survey period.

A. Relocation Requests

In In re Paternity ofX.A.S.^^^ the Indiana Court of Appeals considered

whether the trial court abused its discretion when it denied the father's requested
relocation with the child to California.

*^^

The child at issue in X.A.S. was bom in 1997.^^^ The father established
paternity and was granted custody of the child. Pursuant to Indiana's parenting
time guidelines, his custody was subject to visitation with the mother. The father
and mother were both extensively involved in the child's life and remained

cordial to each other during the period the child lived with the father. The father
married another woman—a member of the U.S. Navy—in 2008.^^' He filed a
notice of intent to relocate, requesting permission for the child to relocate to

California (where the stepmother's ship was based) with the father and
stepmother.

^^^
The mother objected and petitioned to modify custody, but the

state domestic relations counseling bureau's report supported the father's

174. Id. at 1174.

175. Id.

176. Id

\11. Mat 1174-75.
178. 928 N.E.2d 222 (Ind. Ct App.), trans, denied, 2010 Ind. LEXIS 603 (Ind. 2010).

179. Mat 223.
180. Id

181. Id.

182. Id



1272 INDIANA LAW REVIEW [Vol. 44: 1253

request. ' ^^ Thereafter, the trial court conducted a hearing and reftised the father ' s

request to conduct an in camera interview with the child. '^"^ The trial court
entered a summary order that the child was to stay in Indiana.

On appeal, the court considered the state relocation statute '^^ and the six
factors relevant to the best interests of the child.

*^^ The relevant factors
examined by the court included the "hardship and expense involved for [the]
[mjother to exercise parenting time."^^^ It was the trial court's opinion that such
hardship and expense would be "extreme" for the mother. ^^^ The court of
appeals, however, found that the evidence did not support this finding because

the father offered to pay for the child to fly back to Indiana for summer,

Christmas, and spring breaks so that the mother could exercise her parenting

time.^^^ The trial court had also found that the feasibility of preserving the
mother-child relationship—including financial considerations—^would be "nearly
impossible."'^^ The court of appeals, as discussed above, held that this finding
was not supported by the evidence due to the father's offer to pay for the
flights.

^^' The appellate court noted that situations in which the parents are
separated by distance are always difficult, and it is the court's responsibility to

aid the parties.
'^^

The court of appeals also took issue with the trial court's finding that the
father's "insistence on moving with or without his son effectively rob[bed] [the

183. Id.

184. Id. at 224.

185. Id at 224-25; 5eglND. Code § 31-17-2.2-1 (2011).

186. X.A.S., 928 N.E.2d at 225. The court cited the following 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 ....

(3) The feasibility of preserving the relationship between the nonrelocating individual

and the child through suitable parenting time . . . , including consideration of the

financial circumstances of the parties.

(4) Whether there is an established pattern of conduct 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. (quoting IND. CODE § 3 1-17-2.2-1 (b)) (citation omitted).

187. Id 0X226.

188. Id

189. Id

190. Id

191. Id

192. Id



2011] FAMILY AND MATRIMONIAL LAW 1273

child] ofone ofhis parents."'^^ The court said that "this finding cast[] aspersion

on [the] [fjather, his motives, and his actions in a way that . . . [was] wholly
unsupported by the record."^^"^ The court also rebuked the trial court's finding

that by getting married, the father was choosing "romantic interests" over his

child's interests. ^^^ Again, the court noted that this was not supported by the
record and opined that the "[fjather was not required to choose between marriage
and parenting—he can have both."^^^ The court noted several other inferences
related to the "best interest" factors that the trial court relied upon—again,
factors that were unsupported by the record.

'^^

Though the court of appeals noted that the trial court was not required to
conduct an in camera interview, it stated that it would have been better practice
for the trial court to do so, given that the child was twelve years old and had
expressed his desire to live with his father to the domestic relations counseling

bureau. ^^^ The court also noted that the trial court's explanation as to why an in
camera interview was not conducted was that the trial court "knew precisely what
. . . [the child] would say and that, in any event, the trial court was not
'particularly interested.

'"^^^
Finally, the court noted that both parents were

loving parents who only wanted the best for the child, and one ofthem was going
to face "an undeniable heartbreak."^^^ That said, the court determined that the

evidence did not support granting the mother's petition to modify custody and

that denial of the father's petition to relocate was clearly erroneous.^^^

B. One Parent Cannot Gain a Jurisdictional Advantage over the Other
by Unilaterally Removing a Child to Another State

In re K.C?^^ involved a father who had taken his child from Indiana to
Mississippi and the mother's action to force the return ofthe child to Indiana.^^^

The Indiana Court of Appeals considered whether the trial court erred in
determining that it did not have jurisdiction to entertain the mother's action

pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA).^^"^ The mother
in this case had given birth to the child in 2003—out ofwedlock—in Indiana.^^^
Because there had been no paternity affidavit or proceedings, she had sole legal

193. Mat 226-27.
194. Id.

195. Mat 227.
196. Id.

197. Id 0X221-29.

198. Id dX 229.

199. Id

200. Id

201. Id

202. 922 N.E.2d 738 (Ind. Ct. App.), trans, denied, 929 N.E.2d 796 (Ind. 2010).

203. Mat 739.
204. Id

205. Id



1274 INDIANA LAW REVIEW [Vol. 44: 1253

custody of the child.^^^ Without any further determination or modification of

custody, the father "removed [the child] from Indiana to Alabama and later to
Mississippi."^^^ There was conflicting information in the trial record as to
whether the father had abducted the child or the mother had abandoned the

child.^^^

When the mother found the father in Mississippi, she filed a writ of habeas
corpus in Indiana, seeking an order that the father return the child to her.^^^ The
father "moved to dismiss, claiming that Mississippi had become [the child's]
home state and the proper state to adjudicate custody" under the UCCJA.^'^ The
Indiana trial court agreed and dismissed the matter. Because the UCCJA governs
"custody matters," and because this was an action by a mother who already had
sole legal custody to force the return of her child (rather than an action to

establish or modify custody), the UCCJA did not apply.^' ' The mother appealed
the dismissal.

The court ofappeals reversed and remanded the trial court's decision.^'^ The
court noted that "[t]he UCCJA defines 'home state' as 'the state in which a child
lived with (1) a parent; or (2) a person acting as a parent; for at least six (6)
consecutive months immediately before the commencement of a child custody
proceeding. '"^^^ The court placed great weight on the fact that the mother had
not filed a "custody proceeding," but a motion to enforce her preexisting legal

custody rights.^'"^ As such, the mother's writ ofhabeas corpus "did not implicate
the provisions of the UCCJA."^'^

The court then noted in dicta that even had the UCCJA been implicated,
there is substantial case law holding that "one parent cannot 'gain home state
jurisdictional advantage'" over the other "by taking a child to another state."^^^

C. Jurisdiction Pursuant to the UCCJA 's "Significant Connection " Test

In Tamasy v. Kovacs^^^ the Indiana Court ofAppeals considered whether the
trial court abused its discretion in a custody modification matter when it denied
the mother's motion to transfer the proceedings out ofstate and modified custody

from the mother to father.^ '^ The mother and father had divorced in Indiana in

206. Id.

207. Id.

208. See id.

209. Id

210. Id

211. See id.

212. Id

213. Id (citing IND. Code § 31-21-2-8 (201 1)).
214. Id

215. Id

216. /c/. (citation omitted).

217. 929 N.E.2d 820 (Ind. Ct. App. 2010).

218. Mat 824.



2011] FAMILY AND MATRIMONIAL LAW 1275

2000.^^^ The parties shared legal custody oftheir three children, with the mother

providing primary physical custody. Shortly after the dissolution decree was
issued, the mother relocated with the children to Massachusetts.

In 2008, the father filed a petition to modify custody in an Indiana court.^^^

Days later, the mother filed for custody in a Massachusetts court and then filed

a motion in the Indiana trial court asking that it decline jurisdiction due to the

proceedings in Massachusetts—which, as her new state of residence, was "a
more convenient forum."^^* The Indiana trial court denied her motion.^^^
Following extended hearings, which included a custody evaluation

recommending that the children return to Indiana, the trial court modified

custody in favor of the father.^^^ The mother appealed.
The court of appeals first noted that due to the interstate nature of the case,

the UCCJA controlled.^^"^ It was "undisputed that the trial court hadjurisdiction"
to issue its custody order set forth in the original decree "because Indiana was the
home state of the children" in 2000.^^^ Thereafter, although the mother and
children moved away, the father remained in Indiana. Under the UCCJA, the
trial court retains exclusive jurisdiction as long as the matter and the state

maintain a "significant connection," and it is up to the trial court's discretion to

determine whether that "significant connection" still exists.^^^ The court
concluded that the father's continued presence in Indiana after the decree

constituted adequate grounds for the "significant connection" to support the trial

court's retention ofjurisdiction.^^^ The court also concluded that the trial court
did not abuse its discretion in its modification of custody for several reasons.

Specifically, evidence was presented that the children expressed a preference to
be with their father, the children were more emotionally open with the father, and
the father had a better capacity for raising the children.^^^ As such, it was in their
best interest to relocate to Indiana.

D. Enforcing a Foreign Child Support Order

In Hamilton v. Hamilton^^^ the Indiana Supreme Court considered whether
the means by which an Indiana court enforces a foreign child support obligation
are subject to "full faith and credit."^^^ Additionally, it considered whether an

219. Id.

220. Id. at 825.

221. Id

111. Id

IIZ. Id

114. Id

225. Id at 826.

226. Id at 826-27.

227. Mat 827.
228. Id at 832, 836-37.

229. 914 N.E.2d 747 (Ind. 2009).

230. Mat 750.



1276 INDIANA LAW REVIEW [Vol. 44: 1253

Indiana court attempting to enforce a foreign child support obligation may
fashion a different method of collection than the one originally set forth by the
foreign court.^^^

After the mother and father divorced in Florida in 2005, the mother was
awarded custody of the parties' two children, and the father was ordered to pay
child support of$ 1473 per month.^^^ The mother subsequently filed a motion for
contempt against the father in Florida when he did not meet his support
obligations. The father was found in contempt, and the court concluded that he
owed the mother $ 1 1 ,879.^^^ Further, the father was ordered to pay $7500 ofthat
arrearage within twenty days to avoid 170 days in jail.^^"^

After the Florida proceedings, the father moved to Indiana to live with his
parents. The mother then sought to enforce that state's orders by registering the
judgment and contempt order in an Indiana trial court.^^^ The trial court
concluded that Florida's orders were "entitled to ftill faith and credit," but its

contempt remedies were "discretionary and . . . [did] not bind responding

tribunals.
"^^^ The trial court also found the father in contempt but provided for

a less strict purging opportunity than the Florida court had imposed.^^^ Although

the Indiana trial court also ordered 170 days ofjail time for the father, it stayed

the sentence contingent upon his "paying . . . [the mother] $ 1 000, obtaining ftill-

time employment, and executing a wage assignment."^^^ At a subsequent review
hearing, the Indiana court found that the father was not in contempt because he
had complied with the three conditions; further, he was paying the mother in
excess of the sixty percent of net income limitation imposed by the Federal

Consumer Credit Protection Act (FCCPA).^^^ The mother appealed, arguing that
the Indiana trial court's orders were "an impermissible modification" of the

Florida orders and that the Indiana court had erred by interpreting the FCCPA as
a cap on the father's support obligations.^"*^ The Indiana Court of Appeals
affirmed the trial court's decision, and the Indiana Supreme Court granted

transfer.^"*^

Reviewing the history ofthe Uniform Interstate Family Support Act, the Full

Faith and Credit for Child Support Orders Act, and related case law, the Indiana

Supreme Court concluded that the Indiana trial court properly "gave full faith and
credit to the Florida support order" that the father pay the mother child support

231. Id. at 750-54.

232. Id. at 749.

233. Id

234. Id

235. Id

236. Id

237. Id. (agreeing to stay the father's jail sentence if he paid $3750 rather than $7500).

238. Id

239. Id at 749-50.

240. Id. at 750.

241. Id



2011] FAMILY AND MATRIMONIAL LAW 1277

of $1473 per month and that arrearages continued to accrue on that amount.^"^^

Further, the Indiana court acted within its discretion to modify the means by

which that child support obligation was enforced.^"^^ Justice Boehm noted that
"[t]he trial court is entitled to fashion its order in a manner best designed to

encourage compliance.
"^'^'^

The mother also appealed the Indiana trial court's finding that the father was

not in contempt. In reviewing that issue, the Indiana Supreme Court was
troubled by the trial court's apparent reliance on the FCCPA.^"^^ The FCCPA
imposes a maximum wage garnishment ofsixty percent ofthe disposable income
ofan obligor who, like the father in Hamilton, has no other dependent spouse or

child.^"^^ However, the supreme court underscored that the FCCPA imposes a
limitation only on wage assignments, not on what support may be ordered or
garnished by non-wage sources.^"^^ Therefore, the Indiana Supreme Court

remanded this issue to the trial court for a reconsideration of the contempt

finding made independently of FCCPA, noting that "[t]o the extent the trial
court's ruling was based on the FCCPA garnishment limitations, it was
predicated on an erroneous view of the law."^"^^

IV. Paternity AND Maternity

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

A. Putative Father as Next Friendfor Purposes ofa Paternity Petition

In In reAdoption ofE.L. ^^^ the Indiana Court ofAppeals considered whether

the trial court properly dismissed two paternity petitions: one brought by the
putative father, and the other listing the putative father as co-petitioner, as next

friend on behalf of the child.^^^ The child at issue was bom in 2004, and the
mother and putative father were unmarried.^^^ No father appeared on the child's
birth certificate, nor had paternity been subsequently established. ^^^ During the

child's first year, the parents worked out an arrangement where the putative
father cared for the child two nights a week but neither lived with the mother nor

242. Id. at 753.

243. Id.

244. Id at 754.

245. See id. at 755-56.

246. Id at 755.

247. Id. at 755-56.

248. Id at 756.

249. 913 N.E.2d 1276 (Ind. Ct. App. 2009), aff'dmem.., 938 N.E.2d 863 (2010).

250. Id at 1278.

251. Id at 1277.

252. Id



1278 INDIANA LAW REVIEW [Vol. 44: 1253

provided financial support.^^^ In 2006, the putative father moved to Florida and
had no more regular contact with the child. The mother married another man,
J.N., in 2006, and the child thereafter resided with them.^^"^

In 2007, with the mother's consent, J.N. filed a petition to adopt her child.^^^

The putative father refused consent and subsequently "filed a paternity petition
on his own behalfand on behalfof . . . [the child], naming himselfand [the child]
as ' [c]o-[p]etitioners.

'"^^^ The trial court consolidated the adoption and paternity
actions.^^^ The mother moved for dismissal, arguing that the putative father "was
barred by Indiana statute from petitioning for patemity."^^^ The trial court
granted the motion and dismissed the paternity action with respect to both the

putative father and the child (by the putative father as next friend).

Analyzing the trial court's dismissal ofthe action, the court ofappeals noted

that the trial court relied on Indiana Code section 31-19-9-12(1), "under which
a putative father's consent to adoption is implied ifthe putative father fails to file

within thirty days' notice of the adoption petition '(A) a motion to contest the

adoption . . . ancl(B) a paternity action. '"^^^ Here, the putative father did file the

paternity action within thirty days but failed to contest the adoption, so the trial

court determined that he "was barred from petitioning for paternity by Indiana

Code section 31-1 9-9- 1 4."^^^ The court noted that after the trial court' s order, the
Indiana Supreme Court determined in a different matter that consent is implied
"only when a putative father 'fails in both respects'" to meet the requirements of
Indiana Code section 31-19-9-12(1).^^^ Given this development, the court of
appeals analyzed other Indiana statutes to determine whether the putative father's

petition should have been barred.^^^

The court of appeals determined that the putative father failed to register as
a putative father and that such failure "constitutes an irrevocably implied consent

to the child's adoption."^^^ The court also dismissed the putative father's
argument that his timely filing for paternity as to the adoption petition mooted
the failure to file in the state putative father registry.^^"^ In discussing the

requirements, the court noted that filing a paternity action "does not relieve the

putative father from the: (1) obligation of registering; or (2) consequences of

failing to register . . . unless paternity has been established before the filing ofthe

253. Id at 1278.

254. Id

255. Id

256. Id

257. Id

258. Id

259. Id. (emphasis added).

260. Id. at 1279 (citation omitted).

26 1

.

Id (quoting In re Adoption ofUnborn Child ofB.W., 908 N.E.2d 586, 592 (Ind. 2009))

(emphasis in original).

262. Id

263. Id at 1280 (quoting Ind. Code § 31-19-5-18 (201 1)).
264. Id



2011] FAMILY AND MATRIMONIAL LAW 1279

petition for adoption ofthe child."^^^ Additionally, the putative father's paternity

petition would fail under Indiana Code section 31-14-5-3(b), which sets a two
year limitation to file for paternity, subject to six exceptions, none ofwhich were

applicable in this instance.
^^^

Next, the court discussed the paternity petition by the child (by the putative

father as next fi"iend). Following Indiana precedent, the court determined that "a

putative father is a proper next friend for purposes ofa paternity petition."^^^ The

court also stated that "the time limitation of Indiana Code section 31-14-5-3(b)
does not apply when the child is the petitioner. Rather, under Indiana Code
section 3 l-14-5-2(b), 'a child may file a paternity petition at any time before the
child reaches twenty (20) years of age.

'"^^^ The court concluded that "the trial

court erred in dismissing the paternity petition with respect to . . . [the child]

because no Indiana statute sets forth applicable grounds for dismissing a

paternity petition filed on behalf of a minor child by a next friend."^^^

B. Establishment ofMaternity in a Non-Birth Mother

In In re Paternity and Maternity of Infant R. ,^^^ the court of appeals
considered, in the context of surrogacy, whether Indiana law permits an

establishment of maternity other than to a birth mother.^^' This case involved a

father and biological mother who arranged to have their embryo implanted in a
surrogate. During the pregnancy, the father executed a paternity affidavit, and

all three of the parties filed a petition together to establish paternity and

matemity.^^^ The parties submitted an agreed entry to establish maternity in the
biological mother. However, the trial court refused to approve that portion ofthe

agreed entry, finding that Indiana law did not permit the establishment of

maternity in a non-birth mother.^^^ All three parties appealed.

The court of appeals observed that reproductive technologies have changed
substantially since the initial adoption of Indiana's parentage statute.^^"^ The
court also noted the public policy rationale for favoring the establishment oflegal

family bonds.^^^ Thus, the court determined that equity required that an

establishment ofmaternity be permitted.^^^ The court expressly noted that these

265. Id. (quoting IND. Code § 31-19-5-6(b) (201 1)).
266. Mat 1280-81.
267. Mat 1281.
268. Id. at 1282.

269. Id

270. 922 N.E.2d 59 (Ind. Ct. App.), trans, denied, 929 N.E.2d 794 (Ind. 2010).

271. Mat 60.
272. M
273. Id

274. Id at 61.

275. Id. at 60.

276. Mat 61.



1280 INDIANA LAW REVIEW [Vol. 44: 1253

grounds made evaluation of the parties' equal protection claim unnecessary.^^^
Notably, though, the court gave added instructions on remand. Specifically,

the court noted that a birth mother should be presumed to be the biological
mother of a child.^^^ The court also held that establishing maternity in a woman
other than the birth mother must require clear and convincing evidence beyond

a stipulation or agreed entry among the parties.^^^

C Genetic Testing in Paternity Matters Is Not Categorical

In Schmitter v. Fawley,^^^ the Indiana Court ofAppeals considered whether

a trial court properly dismissed a pending paternity action and request for genetic

testing. The mother had filed a paternity action against the putative father in
1973 to determine the paternity ofthe child.^^' The putative father succeeded in
having the matter continued based on his ongoing military service in the Vietnam
^^j. 282 jjjgj^ jjj 1 975^ ^Q mother married a different man, and her new husband
successfully petitioned to adopt the child.^^^ Decades later, in 2009, the thirty-

five-year-old child and mother filed a petition for the original paternity action to

proceed.^^"^ The putative father responded with a motion to dismiss and for
summaryjudgment. The mother and child then filed a motion for genetic testing
to determine paternity. After a hearing, the trial court granted the putative

father's motion for dismissal and summary judgment and denied the motion for
genetic testing.^^^ The mother and child appealed.

The court reviewed applicable adoption statutes and case law and recited that
the finalization of adoption terminates pre-existing parental rights and

obligations.^^^ In the court's view, "assuming that . . . [the husband's] adoption

of . . . [the child] was valid, it terminated all duties and obligations that . . . [the
putative father] might ever potentially have had ... as his putative biological

father."^^^ However, the mother and child also challenged the validity of the

husband's adoption. They claimed it was invalid because the judge pro tempore
who signed the adoption decree was the putative father's attorney in the paternity
matter.^^^ While the court acknowledged that perhaps there should have been a

recusal, this irregularity made the adoption voidable at most—not void.^^^ The

277. Id. at 62 n.4.

278. Id. at 62.

279. Id

280. 929 N.E.2d 859 (Ind. Ct. App. 2010).

281. Id. at 860.

282. Id

283. Id

284. Id

285. Id

286. See id. at 861.

287. Id

288. Id

289. Mat 861-62.



2011] FAMILY AND MATRIMONIAL LAW 1281

court was further swayed by the issue ofestoppel, as the irregularity had not been

raised by the mother and child for thirty-five years.
^^^

The mother and child further argued that they were statutorily entitled to

genetic testing regardless of the dismissal of the paternity action.^^' In support

of their argument, they relied upon statutory language in Indiana Code section
31-1 4-6- 1 , which states that "[u]pon the motion ofany party, the court shall order

. . . genetic testing. "^^^ The mother and child argued that because they filed their

motion prior to dismissal ofthe matter, the trial court was obligated to grant it.^^^

The court concluded that this would be an unmanageable construction of the

statute not intended by the Indiana General Assembly; it could subject

individuals to genetic testing in vexatious paternity lawsuits, even where the

action was promptly dismissed after commencement.^^"^ Thus, the trial court's
grant of summary judgment in the putative father's favor was affirmed, as was
its denial of the motion for genetic testing.^^^

V. Adoptions

Issues related to adoption occasionally arise in Indiana family law. The

following section reviews several such noteworthy cases from the survey period.

A. Decree ofAdoption Without Consent ofNatural Father

In In re Adoption ofJ. C. ,^^^ an unpublished decision accidentally published

and later withdrawn from publication, the Indiana Court ofAppeals considered

the propriety of a decree ofadoption issued by the trial court without consent of
the natural father. In this case, the natural father and mother were parents to the

child, bom in November 2004.^^^ The parents separated in 2005, and the mother
then married the adoptive father.^^^ During their marriage, the natural father

provided care to the child. Upon separation, the mother did not allow the natural
father to see the child until visitation was established through the trial court. The
natural father's last visitation occurred in February 2008.^^^ After that time, the

natural father made no attempt to communicate directly with the child, and the
mother had only sporadic contact with the natural father.

290. /6/. at 862-63.

291. Mat 862.
292. IND. Code § 31-14-6-1 (201 1); Schmitter, 929 N.E.2d at 862.

293. Schmitter, 929 ^.E.2d at S62.

294. Id at 862-63.

295. Id at 863.

296. 919 N.E.2d 1230 (Ind. Ct. App. 2010), depublished by 2010 Ind. App. LEXIS 512 (Ind.

Ct. App. Mar. 23, 2010), reh 'g denied sub nom. J.C. v. T.C., 2010 Ind. App. LEXIS 523 (Ind. Ct.

App. Mar. 24, 2010). For purposes ofthis Article, the cited material was taken from In re Adoption

of J.C, No. 27C01-0808-AD-15, at *1 (Ind. Ct. App. Jan. 22, 2010).

297. Id at *2.

298. Id

299. Id



1282 INDIANA LAW REVIEW [Vol. 44:1253

The natural father was ordered to pay eighty dollars per week in child
support. ^^^ He made these payments for three months in 2006 and for
approximately three months in 2007.^^' After October 2007, he failed to fulfill

any ofhis child support obligations and was incarcerated twice for failing to meet
these obligations.^^^ Evidence was also presented that the natural father did not
take advantage ofthe fiall visitation time he was granted, and all visitation ceased
after February 14, 2008.^^^ The natural father was subsequently incarcerated for
burglary in July 2008 and has a scheduled release date of January 2012.^°"^

During his incarceration, the natural father attempted to contact the child by
sending cards and having a Christmas present delivered, which the mother

reftised to retrieve.
^^^

In August 2008, the adoptive father filed his petition for adoption with the

consent of the mother.^*^^ In May 2009, the trial court entered its decree of
adoption, finding that prior to his incarceration, the natural father "had the ability

to provide for [the child] and failed to do so."^°^ The trial court found that the
natural father had made no substantial contact with the child in some time and no
contact whatsoever since February 2008.^^^ Moreover, the natural father's acts

of sending cards and a present were "characterized as token efforts."^^^

Therefore, the trial court concluded that the natural father had abandoned the

child and his consent to the adoption was not required.^ '^ The natural father
appealed; he asserted that the trial court erred when it concluded that his consent
was not required under Indiana Code section 31-1 9-9-8(b).^^'

On appeal, the court stated, "Indiana Code section 31-19-1 1-1 provides that
the trial court 'shall grant the petition for adoption and enter an adoption decree'

if the court hears evidence and finds, in part, that 'proper consent, if consent is

necessary, to the adoption has been given. '"^'^ The court found that the evidence
supported a finding that the natural father failed to provide financial support to

the child and that there was a lack of substantial contact.^ ^^ The court stated, "In
order to preserve the consent requirement for adoption, the level of

communication with the child must not only be significant, but it must also be

more than 'token efforts' on the part of the parent to communicate with the

300. Id. at *3.

301. Id.

302. Id

303. Id at *2-3.

304. Mat*3.

305. Id

306. Id

307. Id

308. Id

309. Id

310. Id at *3-4.

311. Id at *4.

312. Id at *4-5 (quoting IND. Code §31--19-11 1(a) (2011)).

313. Id at *5.



2011] FAMILY AND MATRIMONIAL LAW 1283

child."^^"^ The court determined that imprisonment on its own is not statutory
abandonment per se, but it also does not "constitute justifiable reason for failing

to maintain significant communication with one's child."^^^ Thus, the court

concluded that the trial court properly determined that the natural father's

consent was not required for adoption of his minor child.^^^

B. Adoption by Grandparent Without Divesting Parental Rights

In In re Adoption of A.M.,
^^^

the Indiana Court of Appeals considered

whether the trial court erred in denying a grandfather's uncontested petition to

adopt his grandchild without divesting the mother of her parental rights. The
child was bom in 2005; in 2009, the mother's father—the grandfather—filed a
petition to adopt the child, reciting therein that the motherjoined the petition and

that she was not relinquishing her parental rights.^^^ The child's father filed
consent to the proposed adoption separately. Subsequently, the trial court issued

an order granting the grandfather's adoption and expressly noting that the

mother's parental rights were not terminated by the adoption.^ ^^

However, several weeks later, the trial court vacated the adoption order sua
sponte, reciting that the order was granted in error, and set the matter for a
hearing.^^^ The grandfather filed a motion to correct the error, which the trial
court heard. Afterwards, the trial court issued an order denying the grandfather's

motion, therein referencing Indiana Code section 3 1-19-15-1 for the proposition
that permitting the mother to retain parental rights in the course of granting the

grandfather's adoption was not permitted by the statute.^^^ The grandfather
appealed.

The court of appeals reviewed the applicable statute, which generally
provides that biological parents are relieved of their rights and obligations upon
the granting of an adoption, subject to two statutory exceptions:

(a) If the adoptive parent ... is married to a biological parent . . .
;
(b)

After the adoption, the adoptive father or mother, or both . . . occupy the
same position toward the child that the adoptive father or adoptive
mother, or both, would occupy ifthe adoptive father or adoptive mother,
or both, were the biological father or mother; and ... are jointly and
severally liable for the maintenance and education of the person.^^^

The court also reviewed the substantial body of case law dealing with adoption

314. Id. at *6 (quoting Rust v. Lawson, 714 N.E.2d 769, 772 (Ind. Ct. App. 1999)).

315. M at *7 (quoting Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App. 1986)).
316. Mat*8-9.

317. 930N.E.2d613(Ind.Ct. App. 2010).

318. /J. at 614.

319. Id.

320. Mat 614-15.
321. Id at 615.

322. Id. at 618 (quoting Ind. Code §31-19-15-2 (2011)).



1284 INDIANA LAW REVIEW [Vol. 44: 1253

and the best interests of the adopted child. The record was uncontroverted that
although the mother and grandfather did not live together, they lived about fifteen

minutes apart, and the child spent almost every other weekend with the
grandfather (as well as three to four other visits per week).^^^ In other words, the

mother and grandfather were essentially co-parenting the child.

The court concluded that the child's best interests would be served by
permitting adoption by the grandfather without divesting the parental rights of
the mother.^^"^ Further, to the extent that a literal application ofthe statute would
not permit this outcome, this would be an "absurd result" that ignored the
overarching objective of serving the best interests of the child.^^^ Thus, the

denial of the adoption was reversed and the matter remanded for further
consistent proceedings.

^^^

Judge Najam filed a dissenting opinion to argue that the adoption statute
permits adoption by only a limited class of persons: single adults, married
couples, and stepparents.^^' He therefore would have affirmed the trial court.^^^
In his view, the statute was based on policy decisions enacted by the legislature
and should be followed even if the best interests of the child might suggest a

different result to the trier of fact.^^^

C Role ofDepartment ofChild Services in Foster Parents ' Adoptions
In In re Adoption ofH.L.W., Jr.,^^^ the court considered whether the trial

court erred in granting an adoption in favor of the foster parents based in part

upon a finding that consent to the adoption by DCS was unnecessary. In this
case, the child was bom out of wedlock in 2006, at which time the child tested
positive for various drugs.^^^ The mother admitted to drug use; after giving birth,
she checked herselfout ofthe hospital against medical advice but did not take the

child with her.^^^ Several days later, the mother returned to the hospital with the

father and completed paperwork designating the father as the putative father.^^^

DCS promptly took the child from the hospital, placed him in foster care, and
filed a child in need of services (CHINS) petition.^^"^ The trial court ordered that
the child remain a ward of DCS and in foster care.^^^ The mother remained

323. Mat 621.
324. Id

325. Id

326. Id

327. Id. at 621-22 (Najam, J., dissenting).

328. Id at 622.

329. Id

330. 931 N.E.2d 400 (Ind. Ct. App. 2010).

331. Mat 402.
332. Id

333. Id

334. Id

335. Id



2011] FAMILY AND MATRIMONIAL LAW 1285

uncooperative, and upon DCS's motion, the trial court terminated her parental
rights. Nevertheless, the goal ofthe CHINS action plan was reunification ofthe
child and father.^^^ The trial court issued an order requiring the father to visit the

child, submit to drug testing, complete various follow-ups and evaluations,

remain employed and drug-free, and establish patemity.^^^

In July 2006, the father established paternity and was ordered to pay child

support of $41 per week to DCS.^^^ The father's construction business
subsequently suffered, and he made no support payments between mid-November
2006 and late November 2007.^^^ Although the father was inconsistent in paying
support, he eventually brought himself into compliance with the other

expectations of the trial court, and his visitation with the child increased from

supervised to unsupervised in 2009.^"^^ DCS eventually recommended
reunification of the father and the child.

Nevertheless, the foster parents filed a petition to adopt the child in the same

trial court where the CHINS case was pending. The father and DCS filed
objections to the adoption. Hearings were held, after which the trial court issued

an order granting the foster parents' adoption.^"^' The trial court concluded, in
pertinent part, that DCS's consent to the adoption was not necessary because
DCS was not withholding consent in the best interests of the child and, further,
that the father's failure to pay child support for a year meant that the father's

consent to the adoption was not required.^"*^ The father and DCS appealed.
The court initially undertook a lengthy analysis of whether it was

jurisdictionally appropriate for the same trial court to approve the CHINS
reunification plan and then adjudicate the adoption issue.^"^^ In the end, the court

concluded that it was "persuaded that the consent statutes . . . enable[d] the trial
court to consider the adoption proceeding despite the pending CHINS action."^'*'^

Next, the court considered the argument set forth by DCS that the trial court
erroneously concluded that DCS consent to the adoption was unnecessary. The
Indiana Code generally provides that written consent to the adoption of a minor
is required by an agency having lawful custody of the child. ^^^ However,
excepted from that general requirement are legal custodians who "failed to
consent to the adoption for reasons found by the court not to be in the best
interests of the child."^"^^

The trial court had concluded that DCS was not acting in the best interests

336. Id.

337. Id.

338. Id

339. Id

340. Id

341. Mat 403.
342. Id

343. Id at 403-08.

344. Mat 407-08.
345. Id at 408.

346. Id (quoting Ind. Code § 3 l-19-9-8(a) (20 11)).



1286 INDIANA LAW REVIEW [Vol. 44: 1253

of the child by withholding consent to the adoption. ^"^^ In support of this
conclusion, the detailed findings of the trial court indicated that DCS failed to
present any evidence that the foster parents were unfit.^"^^ However, the appellate

court concluded that the trial court had applied the wrong standard. In fact, DCS
had no burden to prove the foster parents' lack of fitness.^"*^ Instead, the correct

standard was "whether DCS proved by clear and convincing evidence that its
withholding of consent to the adoption was in [the] [c]hild's best interests."^^^
Reviewing the totality ofthe evidence presented, the court of appeals concluded

that DCS met this burden; as such, it was improper to have granted the adoption
without DCS's consent.^^^

In sum, the trial court had the jurisdictional ability to hear the CHINS
processing and the adoption matter simultaneously.^^^ However, it erred in

concluding that DCS's consent to the adoption was unnecessary.^^^ Because
DCS's consent was required, but withheld, the adoption in favor of the foster
parents was reversed.^^"^ Because the case was resolved on these grounds, the
court did not reach the father's sole claim on appeal, which was that the trial
court erred in concluding that his consent was not required because ofhis failure
to pay child support.^^^

Conclusion

This Article reviews developments in Indiana's family and matrimonial law,

including many notable cases and several fundamental modifications to the
Indiana Child Support Guidelines. These decisions and modifications will

impact fiiture cases involving topics such as dissolution of marriage, child

custody, support, relocation, paternity, and adoption.

347. Id.

348. Id. at 408-09.

349. Id at 409.

350. Id

351. Mat 410.
352. Id

353. Mat 410-11.
354. Id at 411.

355. Id