Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: JOHN J. SCHWARZ II Hudson, Indiana

FILED
Feb 24 2012, 8:45 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
IN RE: LEVI JACOB LOUCKS TESTIMONIAL ) TRUST and JAMES M. LOUCKS, Trustee, ) ) ANGEL M LEPLEY, ) ) Appellant-Petitioner, ) ) vs. ) ) LEVI J. LOUCKS, ) ) Appellee-Respondent. )

No. 17A04-1107-TR-386

APPEAL FROM THE DeKALB SUPERIOR COURT The Honorable Monte L. Brown, Judge Cause No. 17D02-1011-TR-3 February 24, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Angel Lepley sued Levi Loucks to obtain child support. The trial court denied her access to the principal funds of the Levi Jacob Loucks Testimonial Trust (the Trust) for the payment of child support, and denied her request for attorney's fees she incurred in her attempt to collect child support. We affirm. FACTS AND PROCEDURAL HISTORY In 1990, Levi's father, Rick, executed a will directing that on his death, trusts would be established for his children, Levi and Jasmin. The trusts would exist "to provide funds for higher education after each child has completed high school . . . including all necessary maintenance and educational expenses." (App. at 9.) Levi and Jasmin would each receive the principal of their respective trusts when each reached age thirty. The Trust was created in 1993. On May 29, 2007, the court established Levi's paternity of T.L., Angel's child. The court granted Angel primary custody of T.L. and ordered Levi to pay $82.00 per week in child support. In 2008, the child support amount was increased to $108.00. Levi

intermittently paid child support, but not weekly as required. On June 19, 2008, the court noted a child support arrearage of "at least $2,536.00," (Id. at 29), and ordered Levi to pay an additional $22.00 per week to reduce the arrearage. The court also ordered Levi to pay Angel's attorney's fees. On March 1, 2011, Angel petitioned for release of $9,001.26 from the Trust for payment of the child support arrearages and her attorney's fees. Levi and the trustee objected to the disbursement, and the trial court held a hearing on April 20. Angel presented evidence 2

the child support arrearage was $5,014.71 and her attorney's fees to date totaled $4,463.49. The trial court denied her request, finding: "[W]hile this Court is not insensitive to and is in fact sympathetic with [Angel]'s request, this Court can find no Indiana precedential authority permitting a child support recipient to invade a testamentary trust containing protective provisions and which trust does not provide for periodic distribution." (Id. at 5.) DISCUSSION AND DECISION Levi did not file a brief. When an appellee does not submit a brief, we do not undertake the burden of developing arguments for that party. Instead, we apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Prima facie error is "error at first sight, on first appearance, or on the face of it." Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006). Still, we are obliged to correctly apply the law to the facts in the record to determine whether reversal is required. Dominiack Mechanical, Inc. v. Dunbar, 757 N.E.2d 186, 188 n.1 (Ind. Ct. App. 2001). Angel acknowledges the question whether the Trust funds may be used to pay outstanding child support and attorney's fees is a pure question of law because the underlying facts are not in dispute. We agree. When an issue is a pure question of law, we review the lower court's decision de novo. Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000). A pure question of law is one that requires neither reference to extrinsic evidence, the drawing of inferences therefrom, nor the consideration of credibility questions for its resolution. Id. (citing 4A Kenneth M. Stroud, Indiana Practice

Download In Re: Levi Jacob Loucks Testimonial Trust and James M. Loucks, Trustee; Angel M

Indiana Law