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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: DANIEL K. WHITEHEAD Yorktown, Indiana

FILED
Dec 22 2009, 10:02 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
JAMES E. DIXON, SR., Appellant-Petitioner, vs. DOUNTONIA S. DIXON, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 48A02-0902-CV-194

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-0709-DR-1338

December 22, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAKER, Chief Judge

Appellant-petitioner James E. Dixon, Sr., appeals the denial of his motion to correct error, following the decree of dissolution of his marriage to appellee-respondent Dountonia S. Dixon. Specifically, James argues that the trial court abused its discretion in temporarily deviating from the Indiana Parenting Time Guidelines (Guidelines), pending the results of a domestic violence mental health assessment. James also

maintains that the trial court erred in adopting a portion of Dountonia's proposed findings and recommendations in its final order and that it abused its discretion in ordering him to pay $4700 in attorney's fees to Dountonia's counsel. We conclude that the trial court's temporary deviation from the Guidelines was proper and that it did not err in adopting a portion of Dountonia's proposed findings. However, although the trial court properly exercised its discretion in ordering James to pay a portion of Dountonia's attorney's fees, we remand this case to the trial court to determine the reasonableness of the fees. FACTS James and Dountonia were married on November 28, 1995, and two children--Je. and Ja.--were born during the marriage. The parties separated in September 2007, and James filed a petition for dissolution of marriage on January 11, 2008. Following the conclusion of the final hearing on September 12, 2008, Dountonia submitted a proposed "Memorandum Decision" (Decision) to the trial court regarding the disposition of the marital property, custody and child support, and attorney's fees. Dountonia's proposed findings included, among others, the following: 2 "11. The above

evidence shows that HUSBAND is untruthful, narcissistic, manipulative, vengeful and has a propensity toward violence." Appellant's App. p. 59. On November 7, 2008, the trial court issued the following Decision, which included several of Dountonia's proposed findings and conclusions: 4. The Court awards custody of [the children] to Wife, reserving reasonable visitation to the Husband. The Court's custody decision is supported by the evidence at trial and the following specific findings: a) WIFE is a fit and proper custodian who seeks custody of both children. All things being equal, it is desirable for siblings to be reared in the same household. The Petitioner/HUSBAND has shown a clear preference for one child over the other, and desires custody of only one child. b) WIFE has custody of her two older children and a healthy relationship with the father of those children; WIFE has a strong relationship with her parents, and a good support system. HUSBAND has a strained relationship with Carrie Dixon the mother of his child, [K.] He does not see this child except for some time each summer and he has failed to maintain his support obligations for [K.]. c) Except for periods of illness or debilitating pregnancy, the WIFE was the primary caregiver and psychological parent for all of her children during the marriage. While the HUSBAND assumed child care responsibilities during the wife's illness and at times of separation, it is clear that he did so under duress, an d that he expected his wife to clean the house, cook the meals and care for the children even if it was medically difficult for her to do so. This was true despite the fact that husband appeared to have had adequate time for cleaning and childcare, and an unusually flexible schedule. d) HUSBAND has engaged in a systematic effort to demean, isolate and control the WIFE, and he is unlikely to have the motivation or insight to facilitate and encourage a healthy relationship between the children and their mother. e) From time to time, both parties have exercised bad judgment in their tumultuous relationship. While explaining her behavior as motivated by trying to follow Biblical principles and an effort to support and protect her husband, the WIFE . . . take[s] responsibility for her bad choices. The HUSBAND takes no responsibility. He is narcissistic and lacking in insight. The trial was replete with 3

testimony from witnesses who recounted examples of his inappropriate sexual comments and his sharing of discreet personal information with strangers. He fabricated battery and invasion of privacy charges against his own wife, an adult woman who had never been accused of violence or had any adverse contact with law enforcement prior to her marriage to Petitioner. The HUSBAND'S efforts to control the wife have included intimidation and some violence. While the husband's history of prior violence in previous relationships is circumstantial and inferential, there is clear evidence that threats and intimidation have been exhibited in his prior relationships with both peers and women. f) There is also evidence that the HUSBAND has sometimes been neglectful of the children's physical, supervisory, or health care needs when they were in his care. 5. For the reasons set out above, the Court is deviating from the Indiana Parenting Time Guidelines on visitation. While the custody order is final, the deviation from Indiana Parenting Guidelines is provisional or interlocutory. If Husband promptly arranges for a domestic violence/mental health assessment with a licensed psychologist approved by the court and completes a course of study or therapy approved by the psychologist to address Husband's characterological and behavioral difficulties, as well as the other issues noted in this Memorandum Decision, then the court contemplates a normalization of visitation with full implementation of the Indiana Parenting Guidelines. ... 7. Attorney Fees. HUSBAND's trial testimony lacked candor, and was characterized by evasiveness and obfuscation. Beyond that, the prosecution of WIFE's case was made time-consuming and difficult by HUSBAND's lack of cooperation.. . . . (In addition, Husband repeatedly avoided and refused to comply with discovery requests.) Husband also attempted to intimidate Wife's Attorney by the filing of a meritless Disciplinary complaint. Based on a finding of bad faith and a disparity of income Husband is ordered to pay the Wife's Attorney the sum of $4700.00 within 90 days to be applied to her fees in this cause. 8. The assignment and payment of these joint debts and the award of attorney fees is considered a Domestic Order of Support and shall not be subject to discharge in bankruptcy, unless mutually agreed. ... 11. Within 10 days, Counsel for WIFE shall prepare, for the court's consideration, a proposed Decree of Dissolution of Marriage and final judgment incorporating the orders of this Memorandum Decision. 4

Appellant's App. p. 30-34 (emphasis added). The trial court subsequently issued its final decree on December 3, 2008, which provided that B. Wife is to have custody of the minor children. . . .

C. The Court is deviating from the Indiana Parenting Time Guidelines on visitation. While the custody order is final, the deviation from the Indiana Parenting Time Guidelines is provisional or interlocutory. If HUSBAND promptly arranges for a domestic violence/mental health assessment with a licensed psychologist approved by the Court and, completes a course of study or therapy approved by the psychologist to address HUSBAND'S characterological and behavioral difficulties, as well as the other issues noted in the Memorandum Decision, then the Court contemplates a normalization of visitation with full implementation of the Indiana Parenting Time Guidelines. Pending further order of the Court, visitation shall be as follows: Saturdays from 11:00 a.m. to 7:00 p.m., and Christmas Eve from 11:00 a.m. to 7:00 p.m. Visitation exchange shall occur at the Anderson Police Department, or at another location agreed upon in writing.

D. HUSBAND shall pay support in the amount of $139.00 per week, effective Friday, November 7, 2008. Support shall be paid through the Clerk of the Court. HUSBAND is hereby ordered to keep the Court advised of his mailing address at all times. ... F. HUSBAND is hereby order to pay WIFE'S attorney the sum of $4,700.00 within ninety days to be applied to her fees in this cause.

G. Each party shall be responsible for any debts in their own names. Both parties shall be responsible for any joint debts (i.e. family and medical obligations occurred prior to the filing of the dissolution petition) with each party paying exactly one half of the joint debts and holding the other party harmless therefrom on their one half obligation. The assignment and payment of these joint debts and the award of attorney fees is considered a 5

Domestic Order of Support and shall not be subject to discharge in bankruptcy, unless mutually agreed.

H. Personal property shall be awarded to the party now in possession, with debts, if any, to follow the property. Id. at 38-41. Husband now appeals. DISCUSSION AND DECISION I. Standard of Review We initially observe that Dountonia did not file an appellee's brief. When an appellee fails to submit a brief, we do not undertake the burden of developing arguments for her and we apply a less stringent standard of review with respect to showings of reversible error. Murfitt v. Murfitt, 809 N.E.2d 332, 333 (Ind. Ct. App. 2004). That is, we may reverse if the appellant establishes prima facie error, which is an error at first sight, on first appearance, or on the face of it. Id. II. James's Contentions A. Mental Health Assessment and Parenting Time James argues that the trial court abused its discretion in temporarily deviating from the Guidelines and in ordering him to submit to a domestic violence mental health assessment. More specifically, James argues that the trial court erred because there was no evidence to "remotely indicate that [he] ever posed or poses a threat to the physical or emotional well being of the children." Appellant's Br. p. 13. Thus, James maintains that

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the trial court's restriction of his parenting time with the children is contrary to the facts and circumstances before it. We initially observe that the purpose of the Guidelines "is to provide a model which may be adjusted depending upon the unique needs and circumstances of each family." Ind. Parenting Time Guidelines, Preamble. Moreover, the Guidelines "are not meant to foreclose the parents from agreeing to, or the court from granting, such additional or reduced parenting time as may be reasonable in any given case." Id., at

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