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.

FILED
Jun 19 2012, 9:09 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: ERIK H. CARTER Cordell & Cordell, P.C. Indianapolis, Indiana

ATTORNEY FOR APPELLEE: ALAN A. BOUWKAMP Newton Becker Bouwkamp Pendoski, PC Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MARTIN A. HARRIMAN, Appellant-Respondent, vs. KRISTINA A. HARRIMAN, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 41A01-1111-DR-513

APPEAL FROM THE JOHNSON SUPERIOR COURT The Honorable Cynthia Emkes, Judge Cause No. 41D02-0310-DR-164

June 19, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Father appeals the trial court's order modifying child custody and support and finding him in contempt. Father presents the following consolidated and restated issues for review: 1. Did the trial court abuse its discretion in modifying legal and physical custody? Did the trial court abuse its discretion by failing to apply the child support modification to the filing date of Father's petition to modify? Did the trial court properly interpret and apply the 6% Rule to uninsured health-care expenses? Did the trial court abuse its discretion by finding Father in indirect contempt of court? Did the trial court improperly allocate contribution to certain expenses of the minor child?

2.

3.

4.

5.

We affirm in part, reverse in part, and remand. Mother and Father's marriage was dissolved in 2004 when their only child (Son) was about to turn four years old. The parties entered into an agreement, which the trial court accepted, regarding child support, custody, and settlement of property (the Decree). In particular, they agreed to joint legal and shared physical custody of Son, with an equal division of parenting time. The Decree also provided that "the provisions of the Indiana Parenting Time Guidelines shall apply as they pertain to holidays and general rules." Appellant's Appendix at 26. Pursuant to the Decree, Father paid weekly child support in the amount of $147. The parties apparently operated amicably under the Decree for several years without resort to the court. When Son was in first grade, the school began to notice significant learning issues with him. In the beginning of third grade, the school scheduled a meeting with Mother and

2

Father. At this meeting, educators stressed that Son needed testing. Mother was unsure about testing at that time, and Father vehemently resisted it because he did not want his son labeled as a special education student. The principal eventually indicated that she would consider pursuing educational neglect charges if the parents did not authorize testing. Mother had hoped to persuade Father to allow the recommended testing, but when he would not change his mind, she unilaterally authorized testing by the school psychologist in 2009, at the end of third grade. Testing revealed that Son has cognitive disabilities that affect his reading and comprehension.1 As a result of his learning disability, educators met with the parents and established an Individualized Education Plan (IEP) for fourth grade. Part of the IEP involved Son receiving modified assignments and homework. Father did not react well to Mother's decision to allow testing. As a result, he cut off communication between Son and Mother almost entirely during his parenting time.2 In the summer after fourth grade, Father also stopped taking Son to weekly tutoring with Son's established tutor. Further, during fourth grade, Father refused to fully support the IEP plan and modifications implemented by the school. In particular, he would not allow modified homework during his parenting time. Father felt the modifications would make his son lazy and would not prepare him to graduate and for his future. He indicated that what Son really

1 2

Son has also been diagnosed by his pediatrician as having ADD for which Adderall has been prescribed.

On May 11, 2010, Father sent an email to Mother indicating that during his weeks with Son she should only call "if it is something `special' and you need to talk to him". Exhibits, Respondent's Exhibit 39. Otherwise, she was not to call daily and interrupt his time with Son.

3

needs is just "a work ethic and bucking up". August 24, 2011 Transcript at 217. During his parenting time, therefore, Father required Son to do unmodified homework and made Son aware of his disagreement with the IEP. On the other hand, Mother fully supported the IEP plan implemented by the school and helped with Son's modified homework. She also, unlike Father, actively communicated with Son's teachers and volunteered in the classroom. Thus, Son had two vastly different structures at home in the way that he learned and what he was told about his education. As a result of the mixed messages Son was receiving from Mother and Father, educators observed stress and a changed attitude in Son. By the fall of 2010, Son began being disrespectful to his educators at times. Principal Shelley Coover opined this was the result of Son modeling Father's disrespect for the IEP. When required to take modified homework to Father's home, Son manifested stress, nervousness, and agitation. Eventually, during fifth grade, he began to refuse to take modified homework home during his weeks with Father and struggled to get everything done at school instead. Despite being invited, Father failed to attend the IEP conference in April 2011 to plan for Son's transition into middle school. Father also missed a subsequent meeting with educators at the middle school, just before the start of school in August 2011. In fact, when informed of the meeting, Father sent a message to Mother indicating simply, "I'm going to decline on this meeting, I don't see anything productive coming from this at this time." Exhibits, Exhibit 9. He did arrange for an informal "meet and greet" with Son's new teacher and counselor to introduce himself and his fianc

Download Martin A. Harriman v. Kristina A. Harriman.pdf

Indiana Law