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.

ATTORNEYS FOR APPELLANT: APRIL L. BOARD TYLER J. BELLIN April L. Board, P.C. Merrillville, Indiana

ATTORNEYS FOR APPELLEE: RICHARD J. LESNIAK WILLIAM M. MURAKOWSKI Lesniak and Murakowski Schererville, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: JEFFREY W. MORROW, Appellant-Respondent, vs. APRIL B. MORROW, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) )

No. 45A03-0606-CV-285

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Thomas W. Webber, Sr., Judge Pro Tempore Cause No. 45D03-0305-DR-562

April 26, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Jeffrey W. Morrow ("Husband") appeals several aspects of the trial court's order regarding the dissolution of his marriage to April B. Morrow ("Wife"). We affirm in part and vacate in part. Issues We reorder and restate Husband's issues as follows: I. Whether the trial court abused its discretion in allowing the parties' children to choose whether to spend overnights with Husband; Whether the trial court abused its discretion in finding that Husband dissipated marital assets; Whether the trial court abused its discretion in valuing Husband's corporation; Whether the trial court erred in allowing Wife to petition for a modification of child support upon a ten-percent change in Husband's obligation under the Indiana Child Support Guidelines; and Whether the trial court abused its discretion in ordering Husband to pay $10,000 of Wife's attorney's fees. Facts and Procedural History Husband and Wife were married in June 1979. Two children were born of the marriage: E.M., who is now emancipated, and A.M., born in March 1988. In 1995, Husband and Wife adopted J.M., who was born in November 1994. Husband fathered a son out of wedlock--Jo.M., born in May 1999--and paid $1,000 per month in support to Jo.M.'s mother, with whom Husband now lives in Chicago, Illinois. Husband and Wife separated sometime between 1995 and 2003.

II.

III.

IV.

V.

2

On May 9, 2003, Wife petitioned to dissolve the marriage. Judge James Danikolas held a final hearing in July 2004 and May 2005 and died before entering a final order. On March 22, 2006, Judge Pro Tempore Thomas W. Webber, Sr., granted Wife's petition for a trial de novo, which was held on April 27, 2006. On May 4, 2006, the trial court entered an order dissolving the parties' marriage and directing the parties to submit proposed findings and conclusions regarding custody, visitation, and property distribution. On June 8, 2006, the trial court entered an order containing numerous detailed findings of fact and conclusions thereon. Husband's appeal ensued. 1 Discussion and Decision General Standard of Review 2 Where, as here, a trial court enters findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of review. Granzow v. Granzow, 855 N.E.2d 680, 683 (Ind. Ct. App. 2006). We first determine whether the record supports the findings and, second, whether the findings support the judgment. The judgment will only be reversed when clearly erroneous, i.e. when the judgment is unsupported by the findings of fact and the conclusions entered upon the findings. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. Id. (citations omitted).
After Husband filed a notice of appeal, Wife filed, and the trial court granted, a motion to correct error regarding the calculation of Husband's child support obligation, which is not at issue in this appeal.
1

3

I. Overnights with Husband The trial court made the following findings regarding custody and visitation: 7. The children continue to reside with [Wife] in Munster, Indiana. They have attended school at the Munster Public Schools. [A.M.] is a graduating senior in high school and has been accepted at Indiana University Northwest Campus in Gary, Indiana; and, [J.M.] is in 5th grade. 8. Over the past six months to a year neither child has spent overnights in Chicago; when [J.M.] has gone for an overnight, he usually calls [Wife] to come and get him before the night is over. 9. [Husband's] Parenting Time with either child is presently limited to several hours at a time, once, sometimes twice a week or less. However, [Husband] has supplied the children with cell phones and he talks to each several times weekly[, sometimes] several times daily, depending on what is happening in each of the [children's] lives. [Husband] also attends the children's extra-curricular activities as his schedule permits. 10. After [Husband's] last Parenting Time with [A.M.], where they discussed her college education, among other things while in his car parked at [Wife's] house, [A.M.] had an emotional outburst that required hospitalization; [A.M.] is presently in counseling. [Husband] describes [A.M.'s] emotional problems as a typical teenager trying to manipulate the situation; and, as an angry teen when she doesn't get what she wants. [Wife] does not dispute [Husband's] conclusion in this regard. 11. Overnight Parenting Time by the children with [Husband] seems to have broke[n] down when he introduced [them] to his illegitimate son, [Jo.M.], then about four (4) years old. [Husband's] paternity of [Jo.M.] was established in Cook County Circuit Court, February 16, 2005. 12. Presently residing in [Husband's] house in Chicago is his son [Jo.M.], his present lady friend and her two (2) children. [Husband's] lady friend's children have their own bedrooms at [Husband's] house, as does his son [Jo.M.]. On any overnight Parenting Time, [A.M.] or [J.M.] would have to double up with or use those other children's bedrooms. 13. [Husband's] physical Parenting Time with [A.M.] and [J.M.] revolve[s] around [Husband's] need to be in Chicago available for work. During the marriage and up until the divorce was filed [Husband] was involved in all aspect[s] of the children's lives, educational, extra-curricular

We remind Husband's counsel that the argument section of an appellant's brief "must include for each issue a concise statement of the applicable standard of review; this statement may appear in the discussion of each issue or under a separate heading placed before the discussion of the issues." Ind. Appellate Rule 46(A)(8)(b).

2

4

and medical. He and [Wife] jointly made decisions [a]ffecting the children's lives. 14. It is in the best interest of the children, [A.M.] and [J.M.], that physical custody be granted to [Wife]; that [Husband] have reasonable rights of Parenting Time on forty-eight (48) hours prior notice; overnights and weekends with [Husband] as the children express a desire to do so. However, it is also in the best interest of the children that [Husband] continue to be involved in making decisions affecting the children and should therefore be granted joint legal custody. Appellant's App. at 104-05 (citation omitted). Husband challenges the trial court's decision to allow the children to choose whether they will spend overnights with him. Indiana Code Section 31-17-4-1(a) provides that a noncustodial parent is entitled to "reasonable parenting time rights[.]" "When we review a trial court's determination of a parenting time issue, we reverse only when the trial court manifestly abuses its discretion." J.M. v. N.M., 844 N.E.2d 590, 599 (Ind. Ct. App. 2006) (footnote omitted), trans. denied. "An abuse of discretion occurs if the court's decision is clearly against the logic and effect of the circumstances before it or if it has misinterpreted the law." Nowels v. Nowels, 836 N.E.2d 481, 488-89 (Ind. Ct. App. 2005). "No abuse of discretion occurs if there is a rational basis in the record supporting the trial court's determination. We will neither reweigh evidence nor judge the credibility of witnesses. In all parenting time controversies, courts are required to give foremost consideration to the best interests of the child." J.M., 844 N.E.2d at 599 (citations omitted). Husband quotes the following commentary from the Indiana Parenting Time Guidelines: The rearing of a teenager requires parents to make decisions about what their teen should be allowed to do, when, and with whom. At the same time, parents who live apart may have difficulty communicating with each other.
5

If parents are not able to agree, the teenager, who very much wants freedom from adult authority, should never be used as the "tie breaker." Ind. Parenting Time Guideline

Download In Re the Marriage of Jeffrey W. Morrow v. April B. Morrow.pdf

Indiana Law