Court of Appeals of Indiana | Memorandum Decision 85A02-1408-DR-551 |April 8, 2015 Page 1 of 15

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.

ATTORNEYS FOR APPELLANT

Bryan L. Ciyou

Lori B. Schmeltzer

Ciyou & Dixon, P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

R.P. Fisher

Fisher & Ireland

Wabash, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In Re: The Marriage of:

Regina A. Niccum,

Appellant-Respondent,

v.

Matthew B. Niccum,

Appellee-Petitioner.

April 8, 2015

Court of Appeals Cause No.

85A02-1408-DR-551

Appeal from the Wabash Circuit 

Court

Cause No. 85C01-1011-DR-661

The Honorable Patrick R. Miller, 

Special Judge

Barnes, Judge.
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Case Summary

[1] Regina Niccum appeals the trial court’s denial of her motion to continue, the 

modification of custody, the modification of child support, and the award of 

attorney fees to her ex-husband, Matthew Niccum. We affirm.

Issues

[2] Regina raises four issues, which we reorder and restate as:

I. whether the trial court properly denied her 

motion to continue;

II. whether the trial court properly rejected her 

challenge to the qualifications of the guardian 

ad litem (“GAL”);

III. whether the trial court properly modified child 

support; and

IV. whether the trial court properly awarded 

attorney fees to Matthew.

Facts1

[3] Regina and Matthew were married in 2006, and they had a child, H.N, in 2007. 

Their marriage was dissolved in 2011. At that time, the trial court awarded 

 

1

 Regina’s restatement of facts references several incidents that are irrelevant to the issues she raises on 

appeal. We remind counsel that the statement of facts “shall describe the facts relevant to the issues 

presented for review.” Ind. Appellate R. 46(A)(6). Moreover, “The facts shall be stated in accordance with 

the standard of review appropriate to the judgment or order being appealed.” App. R. 46(A)(6)(b). 
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them joint legal custody of H.N. and awarded Matthew physical custody. The 

trial court awarded Regina parenting time, “at a minimum, pursuant to the 

Indiana Parenting Time Guidelines . . . .” App. p. 26. The trial court ordered 

Regina to pay $125.00 per week in child support. In calculating Regina’s child 

support obligation, the trial court deviated from the Indiana Child Support 

Guidelines in part because Regina had five older children, four of whom 

resided with her full time and one of whom resided with her part time, and her 

receipt of child support for those children had been irregular. The trial court 

also considered that Matthew had other family financial support and the 

likelihood that Regina would have more parenting time than provided for in the 

Indiana Parenting Time Guidelines. 

[4] The parties had difficulty communicating, and the custody exchanges were 

difficult at times. These issues were exacerbated by Regina’s work schedule, 

which often required her to work weekends. 

[5] On October 18, 2013, Regina petitioned to modify physical custody and 

terminate her child support obligation. Matthew then requested that Stephanie 

Gottschalk, who had been appointed as the GAL in the original dissolution 

proceeding, be reappointed to the case. Regina responded, requesting that 

someone else be appointed to serve as GAL. In November 2013, the trial court 

issued an order reappointing Gottschalk as GAL. 

[6] On April 25, 2014, the matter was set for a one-day hearing on July 10, 2014. 

On May 29, 2014, Matthew petitioned for sole legal and physical custody. On 
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June 27, 2014, Matthew filed an objection to any continuances, explaining it 

had come to his attention that Regina had taken H.N. to one or more 

counselors in Marion, to a psychologist in Fort Wayne, and to a psychiatric 

nurse practitioner, Rachel Miller, who ultimately proscribed Zoloft for H.N. 

Matthew anticipated that Regina was going to move to continue the July 

hearing because Miller was not available to testify. On July 2, 2014, Regina 

filed a motion to continue the July 10, 2014 hearing. The unverified motion

provided that counsel intended to call Miller as witness, that Miller was not 

available to testify that day, that documentation created by Miller would not be 

available in time for the hearing, and that Miller was a “necessary witness for 

[Regina’s] case.” Id. at 82. On July 7, 2014, the trial court denied Regina’s 

request for a continuance. 

[7] On July 10, 2014, the hearing was conducted. Gottschalk testified, and her 

GAL report was discussed by various witnesses and admitted into evidence 

without objection. At the conclusion of the hearing, Regina’s counsel 

challenged whether Gottschalk was qualified to be a GAL. On July 17, 2014, 

the trial court issued an order denying Regina’s challenge to Gottschalk’s 

qualifications as untimely and unfounded, awarding legal and physical custody 

to Matthew, modifying Regina’s child support obligation from $125.00 to 

$138.00 per week, and awarding Matthew $9,000.00 in attorney fees. Regina 

now appeals.
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Analysis

[8] The trial court’s findings were issued sua sponte, and they control only as to the 

issues they cover. Townsend v. Townsend, 20 N.E.3d 877, 879 (Ind. Ct. App. 

2014). We “shall not set aside the findings or judgment unless clearly 

erroneous, and due regard shall be given to the opportunity of the trial court to 

judge the credibility of the witnesses.” Ind. Trial Rule 52(A). We may not

reweigh the evidence or reassess witness credibility, and we view the evidence 

most favorably to the judgment. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). 

A judgment is clearly erroneous if the evidence does not support the findings, 

the findings do not support the judgment, or the trial court applies the wrong 

legal standard to properly found facts. Fraley v. Minger, 829 N.E.2d 476, 482 

(Ind. 2005). “Appellate deference to the determinations of our trial court 

judges, especially in domestic relations matters, is warranted because of their 

unique, direct interactions with the parties face-to-face, often over an extended 

period of time.” Best, 941 N.E.2d at 502.

I. Continuance

[9] Regarding motions to continue a trial, Indiana Trial Rule 53.5 provides in part:

Upon motion, trial may be postponed or continued in the discretion of 

the court, and shall be allowed upon a showing of good cause 

established by affidavit or other evidence. . . . A motion to postpone 

the trial on account of the absence of evidence can be made only upon 

affidavit, showing the materiality of the evidence expected to be 

obtained, and that due diligence has been used to obtain it; and where 

the evidence may be; and if it is for an absent witness, the affidavit 

must show the name and residence of the witness, if known, and the 

probability of procuring the testimony within a reasonable time, and 
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that his absence has not been procured by the act or connivance of the 

party, nor by others at his request, nor with his knowledge and 

consent, and what facts he believes to be true, and that he is unable to 

prove such facts by any other witness whose testimony can be as 

readily procured.

“A trial court’s decision to grant or deny a motion to continue a trial date is 

reviewed for an abuse of discretion, and there is a strong presumption the trial 

court properly exercised its discretion.” Gunashekar v. Grose, 915 N.E.2d 953, 

955 (Ind. 2009).

[10] Regina contends that the inability to call Miller to testify about her diagnosis 

and treatment of H.N. precluded her from presenting her case in its entirety. 

However, Regina’s argument regarding the relevance of Miller’s testimony is 

based in large part on evidence presented at the hearing, not just the contents of 

her motion to continue, which fell far short of establishing good cause for a 

continuance under Trial Rule 53.5. The motion to continue provided only that 

counsel intended to call Miller “from the Wabash County Bowen’s center as 

witness” at the hearing, that Miller was not available to testify that day, that 

documentation created by Miller would not be available in time for the hearing, 

and that Miller was a “necessary witness for [Regina’s] case.” App. 82. The 

motion was not supported by affidavit and did not explain why Miller was 

necessary to Regina’s case. This bare assertion of necessity was not sufficient to 

establish good cause for the continuance.

[11] Regina claims that the trial court could have ascertained Miller’s testimony 

from the GAL report, which was filed with the trial court before her motion to 

continue and contained a summary of Miller’s meeting with Regina and H.N. 
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Regina’s motion to continue, however, did not reference or otherwise 

incorporate the GAL report, and she cites no authority for the proposition that 

the trial court must sua sponte examine all filings prior to ruling on a motion to 

continue. Moreover, the GAL report included a summary of Miller’s meeting 

with H.N. and Regina, the basis of her diagnosis, and possible side effects of the 

medication she prescribed, and Regina does not explain what additional 

testimony Miller would have offered. As such, Regina has not established that 

she was prejudiced by the denial of her motion to continue. See F.M. v. N.B., 

979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012) (“No abuse of discretion will be 

found when the moving party has not shown that he was prejudiced by the 

denial.”).2 Regina has not established that the trial court abused its discretion in 

denying her motion to continue.

 

2

 Regina argues that the trial court should have continued the hearing for a second hearing so Miller could 

testify; however, she does not direct us to any portion of the transcript showing that she requested a second 

hearing so that Miller could testify. Accordingly, Regina forfeited this issue. Plank v. Cmty. Hosps. of Indiana, 

Inc., 981 N.E.2d 49, 54 (Ind. 2013) (explaining that forfeiture is the failure to make the timely assertion of a 

right and that appellate courts may sua sponte find an issue foreclosed under a variety of circumstances in 

which a party has failed to take the necessary steps to preserve it). Regina also claims that she was entitled to 

call Miller for cross-examination pursuant to Indiana Code Section 31-17-2-12(d), which provides, “Any 

party to the proceeding may call the investigator and any person whom the investigator has consulted for 

cross-examination. A party to the proceeding may not waive the party’s right of cross-examination before the 

hearing.” There is no indication, however, that Regina made this argument to the trial court or otherwise 

sought to call Miller to cross-examine her. This issue is waived. See id.at 53 (“Declining to review an issue 

not properly preserved for review is essentially a ‘cardinal principal of sound judicial administration.’”

(citation omitted)). Finally, Regina’s “due process of law” argument is waived for failing to support it with 

cogent reasoning and citation to relevant authority. See Ind. Appellate. Rule. 46(A)(8)(a) (requiring each 

contention be supported by cogent reasoning and citation to authority). 
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II. GAL Qualifications

[12] Regina asserts that Gottschalk was not statutorily qualified to serve as a GAL. 

Regina, however, did not timely challenge Gottschalk’s qualifications. In her 

objection to Matthew’s request to reappoint Gottschalk, Regina stated about 

Gottschalk, “While [Regina] does not question her qualification, [Regina] 

would point out that there are many equally qualified Guardian Ad Litems that 

would be able to serve in this matter.” App. p. 38. Regina called Gottschalk to 

testify at the hearing, and she did not object to Gottschalk’s testimony or the 

GAL report based on her qualifications. It was not until closing remarks that 

Regina’s counsel asserted Gottschalk lacked training that is statutorily required 

in some circumstances. See Ind. Code § 31-9-2-50 (“A guardian ad litem who is 

not an attorney must complete the same court approved training program that 

is required for a court appointed special advocate under section 28 of this 

chapter.”). At that point, Regina’s attorney stated, “I understand her—her 

report’s in and that her testimony is in, but I think the court needs to keep that

in mind . . . .” Tr. p. 174. 

[13] Our supreme court has observed:

In general “waiver” connotes an “intentional relinquishment or 

abandonment of a known right.” United States v. Olano, 507 U.S. 725, 

733, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation omitted). 

And appellate review presupposes that a litigant’s arguments have 

been raised and considered in the trial court. “To abandon that 

principle is to encourage the practice of ‘sandbagging’: suggesting or 

permitting, for strategic reasons, that the trial court pursue a certain 

course, and later—if the outcome is unfavorable—claiming that the 

course followed was reversible error.” Freytag v. Comm'r of Internal 
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Revenue, 501 U.S. 868, 895, 111 S. Ct. 2631, 115 L.Ed.2d 764 (1991) 

(Scalia, J., concurring). Declining to review an issue not properly 

preserved for review is essentially a “cardinal principal of sound 

judicial administration.”

[14] Plank v. Cmty. Hosps. of Indiana, Inc., 981 N.E.2d 49, 53 (Ind. 2013); see also

Angleton v. State, 714 N.E.2d 156, 159 (Ind. 1999) (“A defendant . . . may not sit 

idly at a sentencing hearing, fail to object to a statutory defect in the proceeding, 

then seek a new sentencing hearing on that basis on appeal. The failure to 

object constitutes waiver.”), cert. denied.

[15] Gottschalk served as the GAL in the original dissolution proceeding and was 

reappointed without any challenge to her qualifications. The GAL report was 

submitted to the trial court without objection by Regina, and Regina called

Gottschalk as a witness at the hearing. Only after the evidence was closed did 

Regina challenge the weight of the Gottschalk’s testimony, not its admissibility. 

Regina may not call for reversal on the basis of Gottschalk’s qualifications 

because the issue was not properly raised and considered in the trial at a time 

when the purported error could have be remedied. This issue was waived. 

III. Child Support

[16] Regina also argues that the trial court erroneously modified her child support 

obligation. The modification of child support is controlled by Indiana Code 

Section 31-16-8-1(b), which provides:

Except as provided in section 2 of this chapter, modification may be 

made only:

(1) upon a showing of changed circumstances so substantial and 

continuing as to make the terms unreasonable; or
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(2) upon a showing that:

(A) a party has been ordered to pay an amount in child support 

that differs by more than twenty percent (20%) from the 

amount that would be ordered by applying the child support 

guidelines; and

(B) the order requested to be modified or revoked was issued at 

least twelve (12) months before the petition requesting 

modification was filed.

[17] Regina argues that, pursuant to this statute, “the trial court can only modify 

child support if there is both a twenty percent (20%) difference from the prior 

determination, and the prior determination was issued more than twelve (12) 

months prior.” Appellant’s Br. p. 38. She contends that the trial court did not 

have authority to modify child support from $125.00 per week to $138.00 per 

week because it is only is a 9% change. In modifying child support, the trial 

court found, “There has been demonstrated a substantial and continuing 

change in circumstances that makes the previously entered child support Order 

entered [sic] unreasonable.” App. p. 17. Thus, the trial court’s decision to 

modify child support was based on Indiana Code Section 31-16-8-1(b)(1), not 

Section 31-16-8-1(b)(2).3 

 

3

 In her reply brief, Regina argues that Indiana Code Section 31-16-8-1(b)(1) is not applicable, “as the 

calculation actually results in only a 9% change, and this was not a continuing and substantial change in 

circumstances to make the prior award unreasonable.” Regina, however, cites no authority for the 

proposition Indiana Code Section 31-16-8-1(b)(1) cannot be used as a basis for modifying support if there is 

only a 9% change in an award. This issue is waived. See Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 

2012) (“A party waives an issue where the party fails to develop cogent argument or provide adequate 

citation to authority and portions of the record.”); App. R. 46(A)(8)(a) (requiring each contention to be 

supported by citation to authority).
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[18] To the extent Regina argues that there was not substantial change in 

circumstances to warrant the modification of child support because both parents 

are gainfully employed and the trial court did not modify physical custody, we 

are not persuaded. In the dissolution order, the trial court acknowledged that it 

was deviating from the Child Support Guidelines in part because Regina’s 

receipt of support for her five other children was irregular and because the trial 

court anticipated she would have more parenting time with H.N. than provided 

for in the Parenting Time Guidelines. At the time of the July 2014 hearing, 

however, Regina only had three other unemancipated children living with her. 

It is also clear that the trial court no longer anticipated Regina would have 

excess parenting time and that Regina’s income had increased more than 

Matthew’s since the 2011 order. Thus, Regina has not established that this 

finding is clearly erroneous.

[19] Regina also argues that the trial court erred in calculating her income at 

$89,258.00 because it included proceeds from her 401(k) and overtime and did 

not take into account her other children. In 2013, Regina reported income of 

$89,258.00, but, according to her testimony, without overtime and cashing in

her 401(k), she would have made $56,000.00, her base salary. Regina testified 

her 2013 income was over $92,000 but she reported $89,258.88 because of 

contributions to her 401(k). She also testified that, based on her February 8, 

2014 paystub, she was on track to earn almost $93,500.00 in 2014. 

[20] Assuming that Regina is correct that her 2013 income included proceeds from 

her 401(k), she does not direct us to evidence showing the amount of the 401(k). 
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Regarding overtime, Regina testified that she worked overtime because “if I’m

not around the kids, I might as well be at work.” Tr. p. 55. Without more, 

Regina has not established that the trial court abused its discretion by 

calculating her income at $89,258.00. See Schwartz v. Heeter, 994 N.E.2d 1102, 

1105 (Ind. 2013) (“Accounting for irregular income under the Guidelines is a 

fact-sensitive inquiry within a trial court’s discretion.”).

[21] As far as the support of Regina’s five other children, the trial court found that 

three other unemancipated children were living with her, but there was no 

testimony or evidence presented regarding her legal duty to support these 

children. Regina testified, “raising that many kids without any child support 

from their father is sometimes a bit of a challenge.” Tr. p. 42. However, she 

went on to testify that she is supposed to receive $668.00 a month for them and 

that he pays “[w]henever he gets locked up.” Id. at 43. She later testified that, 

at the time of the hearing, they were with their father for summer visitation. 

The trial court was free to weigh what little evidence there was regarding the 

support of Regina’s other children, and she has not established that the trial 

court abused its discretion in calculating child support.4

 

4

 The chronological case summary indicates that, after the trial court issued its order, Regina’s attorney sent 

a letter to the trial court, which was forwarded to Matthew’s attorney. The trial court apparently reviewed 

the attachments to the letter and found them insufficient to determine Regina’s “financial amount for her 

Court Order or Legal Duty for her Prior Born Children.” App. p. 13. The parties do not discuss this filing,

and it is not included in the appendix. 
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IV. Attorney Fees

[22] Regina argues that the trial court erroneously ordered her to pay $9,000.00 in 

attorney fees to Matthew. On this issue, the trial court found:

1. . . . Father has incurred reasonable attorney fees in this matter in 

the sum of $13,300.00, and has requested an award of the same.

2. In ruling on this request, the Court has considered the resources 

available to both parties, the economic circumstances of the parties, 

the abilities of the parties to engage in gainful employment and earn 

adequate income, whether a party was required to defend an 

unmeritorious claim, the results achieved by the parties, the 

complexity of the issues, and other such factors as the Court may. 

(Ind. Code § 34-52-1-1; Ind Code § 31-15-10-1; Ind Code § 31-16-11-1; 

Ind. Code § 31-17-7-1; Ind. Code 31-17-4-3)

3. Having considered such factors, Mother is ordered to pay an award 

and judgment of $9,000.00 of reasonable attorney fees to Father, 

Matthew Niccum which award is in the nature of, and related to child

support. The fees shall be paid in full by December 31, 2014. . . .

App. p. 18. 

[23] Regarding child support and the modification of custody, a trial court 

periodically may order a party to pay a reasonable amount for the cost to the 

other party of maintaining or defending any proceeding. See I.C. §§ 31-16-11-1, 

31-17-7-1. A determination of attorney fees is within the sound discretion of 

the trial court and will be reversed only upon a showing of a clear abuse of that 

discretion. Whited v. Whited, 859 N.E.2d 657, 665 (Ind. 2007) (concerning 

modification of custody); Barger v. Pate, 831 N.E.2d 758, 765 (Ind. Ct. App. 

2005) (applying abuse of discretion standard to attorney fee award in a custody 

modification proceeding). “In determining whether to award attorney fees, the 

trial court must consider the parties’ resources, their economic condition, their 
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ability to engage in gainful employment, and other factors that bear on the 

award’s reasonableness.” Whited, 859 N.E.2d at 765. The trial court is not

required to cite the reasons for its determination. Id. 

[24] Regina argues that there is no evidence to support the trial court’s finding that 

Matthew incurred $13,300.00 in attorney fees. We disagree. Matthew offered 

evidence that his attorney had spent fifty-three hours on the case prior to the 

hearing at a rate of $225.00 to $230.00 an hour. This is consistent with 

Matthew’s testimony that before the hearing he met with his attorney and, at 

that time, his bill was around $12,000.00. The trial court was aware how long 

the hearing was and could infer that Matthew incurred an additional $1,300.00 

in attorney fees related to the hearing. Further, another attorney testified at the 

hearing that a reasonable attorney fee for the case would be between $10,000.00 

and $15,000.00. The evidence supports this finding.

[25] Regina also argues that the trial court abused its discretion in ordering her to 

pay the attorney fee award in five-and-a-half months considering her income,

her child support obligation, and her support of her other children. However, 

the trial court was in the best position to consider the various factors, including 

the parties’ ability to pay and the merits of the parties’ claims, and we will not 

second guess that determination. See Whited, 844 N.E. at 665 (summarily 

affirming the trial court’s decision to deny a request for attorney fees because 

“the trial court was in the best position to make this determination and consider 

the above factors”). 
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Conclusion

[26] Regina has not established that the trial court abused its discretion in denying 

her motion to continue, in modifying child support, or in awarding Matthew 

$9,000.00 in attorney fees. Regina waived any challenge to the GAL’s 

qualifications by not timely raising the issue. We affirm.

[27] Affirmed.

May, J., and Pyle, J., concur.