Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 1 of 10 

### MEMORANDUM DECISION 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.
A TTORNEY FOR A PPELLANT Thomas N. Leslie Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Kathleen M. Meek Justin T. Bowen Bowen & Associates Carmel, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
T. M., A

ppellan t -Defendant,

v. 

### D.W., A

ppelle e -Plaintiff April 30, 2015 Court of Appeals Case No. 48A02-1407-JP-457 Appeal from the Madison Circuit Court Cause No. 48C02-1307-JP-170 The Honorable G. George Pancol, Judge.



### Friedlander , Judge.

[1] T.M. (Mother) appeals the trial court’ s paternity order, which established custody and support. She presents the following restated issues for review:
1. Did the trial court abuse its discretion when it refused Mother’s request for attorney fees?Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 2 of 10 2. Is D.W. (Father) still bound by a preliminary order requiring him to pay the cost of Mothe r’s initial drug testing and evaluation, which he has not paid? On cross appeal, Father raises the following restated issue:
3. Did the trial court err in ca lculating Father’s parenting time credit by failing to include all overnights? [2] We affirm and remand.

[3] Child was born September 30, 2008, and lived with Mother and Father at Father’s residence in Anderson until Mo ther moved out with Child on June 17, 2013. Mother moved her and Child’s be longings out of the residence without any notice to Father and while he was at work. Eric Goodwin rented a truck and assisted with the move to Goodwi n’s home in Franklin, about an hour away. Goodwin and Mother continue to reside together and plan to marry.

[4] On July 17, 2013, Father filed a Consol idated Verified Emergency Petition to Establish Paternity, Child Custody, and Child Support. The trial court held a brief hearing on September 5, 2013, at wh ich the parties stipulated to Father’s paternity of Child. In its provisional order, the court granted the parties joint legal custody, Mother prim ary physical custody, an d Father parenting time pursuant to the Indiana Parenting Time Guidelines except th at he would have Child every weekend. Per Father’s reques t, the court also ordered the parties toCourt of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 3 of 10 submit to substance abuse evaluation and drug test ing. The court ordered Father to select a provider and pay fo r these initial costs for both parties. 1

[5] The final hearing regarding custody and support took place on December 2, 2013 and April 2, 2014. Father presente d evidence that he owns his own home and has been employed with the same company for approximately twenty years. He works about fi fty hours per week and ha s an average weekly gross income of $1129. With re spect to Mother, evidence wa s presented that she is a server at a restaurant in Franklin an d works varying shifts, including double shifts on the weekends. She grosses about $450 per week. She lives with Goodwin in a home of which he has granted her part ownership.

[6] During her presentation of evidence, Mother testified that Father had not paid for the initial substance abuse evaluation and testing, as previously ordered by the court. She submitted the unpaid bill , which she indicated she continued to receive in the mail. Mother requested that the court order payment by Father. Additionally, Mother submitted evidence regarding the amount of her attorney fees (approximately $16,000). Father st ipulated to this ev idence without the need for Mother’s atto rney to testify regarding the amount and its reasonableness. Mother requested that the court order Father to pay her attorney fees.

1 Mother’s test results were submitted to the court on October 31, 2013. She tested “negative for over twentytwo drugs, including cocaine, opiates, synthetic opioids (methadone), amphetamines and others.” Appellant’s Appendix at 10.Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 4 of 10 [7] At the conclusion of the hearing, the trial court took the matter under advisement and gave the parties thirty days to file proposed findings and conclusions. The CCS reflects that th e parties filed proposed orders, but the filings have not been included in the re cord before us. On May 12, 2014, the trial court issued its order. The cour t left the custody arrangement unchanged, ordered Father to pay $112 per week in child support, determined the arrearage, and directed the parties to pay their own attorney fees. Moth er filed a motion to correct error on June 5, 2014, wh ich was summarily denied. Mother now appeals.

[8] When a trial court issues specific find ings of fact and conclusions of law pursuant to Indiana Trial Rule 52, as in this case, we apply a two-tiered standard of review. Without reweig hing the evidence or assessing the credibility of witnesses, we must dete rmine “whether the ev idence supports the findings and whether the find ings support the judgment.” Tompa v. Tompa, 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). We will not set aside the trial court’s findings or conclusions unle ss they are clearly errone ous—that is, if they are unsupported by any facts and infere nces contained in the record. Tompa v. Tompa, 867 N.E.2d 158. We will find the judgment to be clearly erroneous if we are left with a firm conviction that there has been a mistake. Id. Further, if the findings and conclusions entered by th e trial court are cl early inconsistent with the judgment, “the decision must be set aside regardles s of whether there was evidence adduced at trial which woul d have been sufficient to sustain theCourt of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 5 of 10 decision.” Young v. Young , 891 N.E.2d 1045, 1047 (Ind. 2008) (quoting McGinley-Ellis v. Ellis , 638 N.E.2d 1249, 1252 (Ind. 1994)).
1.

[9] Mother claims that the trial court erred in rejecting her request to order Father to pay her attorney fees and notes that the court made no findings of fact supporting its decision. According to Mo ther, she is entitled to attorney fees due to the large disparity of income between the parties. 2

[10] When determining whether to award attorn ey fees, a trial co urt must consider the resources of the parties, their rela tive earning ability, and other factors bearing on the reasonable ness of the award. See Connolly v. Connolly , 952 N.E.2d 203 (Ind. Ct. App. 2011). We re view a trial court’s decision regarding attorney fees for an abuse of discretion. Id. Further, “a trial court is not required to give reasons for its determination.” Id . at 208. 3

[11] Ind. Code Ann. § 31-14-18-2(a) (West, Westlaw current with all legislation of the 2015 1 st Regular Session of the 119 th General Assembly effective through

2 Mother also argues that Father’s conduct during the proceedi ngs created additional legal expenses for her. She asserts that “while there was no official miscondu ct, the lengthiness of these proceedings was brought on by Father’s lack of evidence and failure to adequately pr esent his case for want of expert opinion testimony.” Appellant’s Brief at 13. We find this argument, which was no t raised below, unsupported by the record and meritless. 3 In support of her apparent assertion that the trial court was required to explain its decision, Mother relies on Masters v. Masters , 20 N.E.3d 158 (Ind. Ct. App. 2014). We observe, however, that the Indiana Supreme Court granted transfer in Masters on April 2, 2015. Accordingly, the appeals court decision has been vacated and has no precedential value. See Barth v. Barth , 693 N.E.2d 954 (Ind. Ct. App. 1998), trans. denied

.Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 6 of 10 March 24, 2015) provides that the trial court may order a party to pay a reasonable amount for the oppo sing party’s attorney fees. 4 The statute, however, does not affirmatively require th e trial court to award attorney fees. As we have previously ob served in this context, “[t]here is no abuse of discretion for the trial court not to do th at which it is not required to do.” Russell v. Russell, 693 N.E.2d 980, 984 (Ind. Ct. App. 1998), trans. denied. See also Tompa v. Tompa , 867 N.E.2d 158.

[12] Mother argues that she is entitled to attorney fees because Father’s income significantly exceeds hers. “While disp arity of income may be considered in awarding attorney fees, a trial court is not required to award fees based on disparity of income alone.” Russell v. Russell, 693 N.E.2d at 984. Because the trial court was not affirmatively required to award attorney fees under I.C. § 31- 14-18-2, it did not abuse its discretion by denying Mother’s request.

2.

[13] Mother contends that the tr ial court should have included in its final order a judgment for the court-ordered drug test ing and evaluation costs that Father had been previously ordered to pay, yet remained unpaid at the time of the final hearing. 5 Father, however, claims that his obligation to pay under the

4 This statute is substantially similar to that applied in the dissolution context. Accordingly, we may rely on authority from both patern ity and dissolution cases. 5 Mother’s appellate and reply briefs both have a page missing in this portion of her argument. We advise counsel to be more cautious before filing briefs before this or any other court.Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 7 of 10 provisional order was “merged and ex tinguished by the final Order.” Appellee’s Brief at 14.

[14] In general, a provisional order terminates when the final decree is entered. Mosser v. Mosser , 729 N.E.2d 197 (Ind. Ct. App. 2000). “Nevertheless, an obligation accrued prior to th e final decree survives.” Id . at 200 n.3.

[15] Here, the provisional order provided, with respect to drug testing, as follows: “The parties are to both submit to substa nce abuse evaluation and drug testing. The Father will pay the initial cost of th ese evaluations and tests. The Father will select the provider. The Mother will then make arrangements and appointments within thirty days.” Appellant’s Appendix at 6. The evidence establishes that after Father selected th e provider, Mother completed the initial evaluation and testing on October 30, 2013. 6 Five months later, Mother testified at the final hearing that she co ntinued to receive unpaid bills related to this testing, and she submi tted into evidence one such bill that she had received in the mail. Mother asked the trial cour t to order Father to pay the amount due for the initial drug testing and evaluation.

[16] The bill from Ameritox reflects labora tory services receiv ed by Mother on October 30, 2013, in the total amount of $1012.35. Father claims that his

6 Father notes that Mother’s drug te sting occurred thirty-four days after he notified her of the provider. He claims that the delayed testing “voided even Father’s minimal requirement to be initially responsible for the cost.” Appellee’s Brief at 16. Father did not assert this argume nt below and offers no authority for it on appeal. Moreover, we observe that the order is vague, requiring Mother to “make arrangements and appointments within thirty days” rather than requiring her to submit to testing within that time.Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 8 of 10 hearsay objection to this evidence was improperly rejected by the trial court because the bill was submitted to establis h the amount due. Regardless of the amount, Mother’s testimony establishes th at Father failed to pay the bill as ordered by the trial court. Further, our Supreme Court has indicated that “[m]edical bills already charged can us ually be admitted over any hearsay objection either through testimony of th e supplier... or through testimony of the patient”. Cook v. Whitsell-Sherman , 796 N.E.2d 271, 278 (Ind. 2003). Cf. Barrix v. Jackson , 973 N.E.2d 22, 29 (Ind. Ct. App. 2012) (bills inadmissible hearsay where not admitted as a busi ness record and proponents “also failed to adduce testimony from [patient] that laid any form of foundation fo r admissibility of the bills based upon her memory of havi ng received those bi lls for treatment”), trans. denied

.
[17] We remand this cause to the trial court so that it may amend its final decree to include an order directing Father to pa y the costs of Mother’s initial drug testing and evaluation.
3.

[18] On cross appeal, Father contends that th e trial court erred in calculating child support because it only credited him with 102-105 overnights per year. According to Father, the parenting time credit should have been calculated using 134 overnights.

[19] A trial court’s calculation of child support under the Indiana Child Support Guidelines (the Guidelines) is presumptively valid. Young v. Young , 891 N.E.2dCourt of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 9 of 10 1045. We will reverse a trial court’s de cision with respect to child support matters only if it is clearly e rroneous or contrary to law. Id

.
[20] Indiana Child Support Guidel ine 6 provides that “[a] credit should be awarded for the number of overnigh ts each year that the child(ren) spend with the noncustodial parent.” The commentary to Guideline 6 pr ovides that the computation of this credit “will requ ire a determination of the annual number of overnights of parenting time exerci sed by the parent who is to pay child support, the use of the standard Child Support Obligation Worksheet, a Parenting Time Table, and a Parent ing Time Credit Worksheet.” The commentary further provides that a non- custodial parent exercising parenting time pursuant to the Guid elines, without extending the weeknight period into an overnight, will have a pproximately 98 overnights.

[21] In this case, the trial cour t determined that Father’s annual overnights will be between 101 and 105, as he had been aw arded parenting time in excess of the Guidelines (every weekend rather th an every other weekend). Father’s assertion that he should have been cr edited with 134 overnights is neither supported by the record nor adeq uately explained on appeal.

[22] We observe that Father has failed to pr ovide us with the proposed child support worksheet, parenting time credit worksheet, or findings that he submitted to the trial court, and the number of overnigh ts claimed by Father was not addressed at the hearing. On appeal, Father suppor ts his claim that he is entitled to 134 overnights with a simple footnote:Court of Appeals of Indiana | Memorandum Decision 48A02-1407-JP-457 | April 30, 2015 Page 10 of 10 The number of overnights for the ex tra weekend has been adjusted to account for Mother’s summer and holiday parenting time, of approximately eight weeks. The Court can take judicial notice of the fact of the number of overnights awarded to Father. Ind. Evidence Rule 201. Appellee’s Brief at 18 n.1.

[23] Father’s explanation in his appellate brie f as to how he calculates a parenting time credit based on 134 overnights is entirely inadequate. Additionally, our own crude calculations, based on admittedl y incomplete information, result in overnights closer to the trial court’s determination than Father’s. With the limited record before us, we cannot conc lude that the trial court’s determination regarding overnights is cl early against the logic and effect of the facts and circumstances before it. Father has failed to establish error.

[24] We affirm and remand. Kirsch, J., and Crone, J., concur.