Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 1 of 28

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.

ATTORNEY FOR APPELLANT

R. Lee Money

Greenwood, Indiana

ATTORNEY FOR APPELLEE

Michael Cheerva

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Elizabeth Ann McQuinn,

Appellant-Petitioner,

v.

Michael Todd McQuinn,

Appellee-Respondent

February 28, 2018

Court of Appeals Case No.

29A05-1707-DR-1637

Appeal from the Hamilton 

Superior Court

The Honorable William J. Hughes, 

Judge

The Honorable William P. 

Greenaway, Special Judge 

Trial Court Cause No.

29D03-0904-DR-543

Altice, Judge.

Case Summary
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[1] This appeal is the latest chapter in the acrimonious and virtually constant

litigation that has ensued following the 2010 dissolution of the marriage of 

Elizabeth McQuinn (Mother) and Michael Todd McQuinn (Father). Mother 

appeals from the trial court’s order disposing of numerous motions filed by the 

parties. Mother raises several issues, which we restate and reorder as follows:

1. Did the trial court abuse its discretion in modifying child 

custody?

2. Did the trial court abuse its discretion in finding Mother in 

contempt?

3. Did the trial court abuse its discretion in declining to impute 

income to Father?

4. Did the trial court abuse its discretion in awarding Father the 

right to claim tax exemptions for the parties’ children? 

5. Did the trial court abuse its discretion in restricting Mother’s 

significant other from being present during parenting time 

exchanges and the children’s extracurricular activities?

6. Did the trial court abuse its discretion in awarding Father 

attorney fees?

[2] We affirm.
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Facts & Procedural History1

[3] Mother and Father have three children: a son, J.M., born in 1999; a daughter, 

M.M., born in 2001; and another daughter, H.M., born in 2005 (collectively, 

the Children). Mother filed her dissolution petition on April 16, 2009, and 

pursuant to a mediated settlement agreement adopted in March 2010, the 

parties shared joint legal custody of the Children, Mother was awarded physical 

custody, and Father was awarded parenting time in excess of that set forth in 

the Indiana Parenting Time Guidelines.

[4] In July 2011, custody was modified to grant Mother sole legal custody of the 

Children and to provide that the parties would split physical custody equally on 

alternating weeks. Custody was modified again on July 30, 2013. At that time, 

Father was granted sole legal and physical custody of J.M. Mother was 

awarded primary physical custody of M.M. and H.M., and Mother and Father 

were awarded joint legal custody of the girls. Parenting time was ordered for 

both parents pursuant to the Parenting Time Guidelines, and it was ordered 

that all three of the Children were to be together for parenting time. In 

February 2014, parenting time was modified yet again pursuant to an agreed 

order, which provided that Mother’s parenting time with J.M. would remain 

 

1 We note that Mother’s statement of facts contains a number of argumentative statements. We remind 

Mother’s counsel that the statement of facts in an appellate brief should be devoid of argument. See Minix v. 

Canarecci, 956 N.E.2d 62, 66 n.2 (Ind. Ct. App. 2011).
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unchanged, but Mother and Father would alternate physical custody of M.M. 

and H.M. on a weekly basis. 

[5] For reasons that are not entirely clear from the record, Mother’s relationship 

with J.M. and Father’s relationship with M.M. deteriorated greatly after the 

divorce, which led to problems with parenting time. Since his sixteenth 

birthday in July 2015, J.M. has refused to cooperate with parenting time or to 

see Mother at all. When Mother would come to his school to pick him up, he 

would avoid her and ride the bus to Father’s house. When Father would drop 

J.M. off at Mother’s house, J.M. would leave and walk several miles, even in 

inclement weather, to Father’s or a friend’s house rather than stay with Mother. 

Father imposed various punishments for J.M.’s defiance, all to no avail. 

[6] M.M. has also been uncooperative with parenting time with Father. On many

occasions, when Father arrived to pick M.M. and H.M. up from Mother’s 

house, M.M. refused to come outside. When Father or his current wife would 

attempt to pick M.M. up from school, she would often not be present. 

[7] Father filed another motion to modify custody on May 31, 2016, as well as a 

motion for rule to show cause on June 10, 2016. On July 6, 2016, the trial 

court denied Father’s petition to modify, “reaffirm[ed] its prior order of custody 

in all respects”, reminded the parties that they were expected to abide by the 

court’s prior order, and ordered that Father’s parenting time with M.M. was to 

“be restarted immediately.” Appellant’s Appendix at 43. The trial court also 

found Mother in contempt for failing to provide Father with health insurance 
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information for the Children as required and ordered her to pay $1,500 of 

Father’s attorney fees as a sanction. On July 7, 2016, Father filed another

motion for rule to show cause alleging that Mother had not made M.M.

available for parenting time the previous day as ordered. 

[8] Thereafter, on August 16, 2016, Mother’s significant other, Dewey Price, 

picked M.M. up from school on a day that Father was scheduled to have 

parenting time. This led to a confrontation between Father and Price in the 

school parking lot, which culminated in Price driving away with M.M. and the 

police being called. On August 18, 2016, Father filed an emergency motion for 

rule to show cause alleging that Mother had repeatedly defied court orders by 

concealing M.M. within her home during Father’s scheduled parenting time, 

including following the August 16 incident at M.M.’s school. A hearing was 

held on August 30, 2016, at the conclusion of which the trial court found 

Mother in contempt and imposed thirty days incarceration, with five days 

executed and the remainder suspended. The court further ordered that Father 

was to immediately exercise forty consecutive days of make-up parenting time 

with M.M. At the same hearing, the trial court found Price to be in direct 

contempt for signaling answers to Mother during her testimony, and he was 

ordered to serve forty-eight hours in jail as a sanction. 

[9] Both parties filed numerous additional motions and petitions. Those relevant 

to this appeal include: Mother’s and Father’s cross-petitions to modify custody

and parenting time, Father’s motions for rule to show cause, Father’s petition to 

restrain Mother from having Price present during parenting time exchanges or 
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at the Children’s activities and schools, Father’s petition to modify child 

support and tax exemptions, and Father’s request for attorney fees. Following a 

four-day hearing, the trial court issued its order on all pending matters on July 

3, 2017.2 In its order, the trial court awarded Father sole legal custody and 

primary physical custody of all three of the Children. Mother was awarded 

parenting time pursuant to the Guidelines with M.M. and H.M., and two hours 

of supervised parenting time per week with J.M. The trial court recalculated 

child support accordingly, and it further granted Father the right to claim the 

tax exemptions for all three of the Children henceforth. Additionally, the trial 

court granted Father’s request to restrain Mother from having Price present at 

parenting time exchanges and the Children’s schools and activities, and it 

further found Mother to be in contempt for discussing the litigation with M.M.

and for failing to abide by the previous court order regarding tax exemptions for 

2014 and 2015. Finally, the trial court ordered Mother to pay $14,000 of 

Father’s attorney fees. Mother now appeals. Additional facts will be provided 

as necessary.

Discussion & Decision

 

2 Mother did not include this order in her appendix, instead filing it separately as an addendum to her brief. 

Thus, we will cite the order separately as follows: July 3, 2017 Order. Mother has also failed to include a 

number of relevant filings in her appendix. See Wilhoite v. State, 7 N.E.3d 350, 354-55 (Ind. Ct. App. 2014) 

(noting that it is the appellant’s burden to provide us with an adequate record to permit meaningful appellate 

review). We are permitted, pursuant to Indiana Evidence Rule 201(a), to take judicial notice of the “records 

of a court of this state.” See Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App. 2012) (explaining that judicial 

notice may be taken at any stage of the proceedings, including on appeal), trans. denied. We have done so 

where necessary.
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[10] Where, as here, the trial court enters findings of fact sua sponte, the specific 

findings control only as to the issues they cover, while a general judgment 

standard applies to any issue upon which the court has not entered findings. 

Brinkmann v. Brinkmann, 772 N.E.2d 441, 444 (Ind. Ct. App. 2002). The 

specific findings will not be set aside unless they are clearly erroneous, and we 

will affirm the general judgment on any legal theory supported by the evidence. 

Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind. Ct. App. 1997), trans. denied. A 

finding is clearly erroneous when there are no facts or inferences drawn 

therefrom that support it. Id. at 76-77. In reviewing the trial court’s findings, 

we neither reweigh the evidence nor judge the credibility of the witnesses. Id. at 

77. Rather, we consider only the evidence and reasonable inferences drawn 

therefrom that support the findings. Id.

1. Custody Modification

[11] Mother first challenges the trial court’s decision to modify child custody. We

review custody modifications for an abuse of discretion, with a preference for 

granting latitude and deference to our trial judges in family law matters. Kirk v. 

Kirk, 770 N.E.2d 304, 307 (Ind. 2002). In the initial custody determination, 

both parents are presumed equally entitled to custody, but a petitioner seeking a 

subsequent modification bears the burden of demonstrating that the existing 

custody should be altered. Id. When reviewing a trial court’s decision 

modifying custody, we may not reweigh the evidence or judge the credibility of 

the witnesses. Browell v. Bagby, 875 N.E.2d 410, 412 (Ind. Ct. App. 2007), trans. 

denied. Instead, we consider only the evidence most favorable to the judgment 
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and any reasonable inferences therefrom. Id. Importantly, we observe that our 

court’s deference to the trial court’s decision to modify custody is “a reflection, 

first and foremost, that the trial judge is in the best position to judge the facts, to 

get a feel for the family dynamics, to get a sense of the parents and their 

relationship with their children—the kind of qualities that appellate courts 

would be in a difficult position to assess.” MacLafferty v. MacLafferty, 829 

N.E.2d 938, 940-41 (Ind. 2005).

[12] Indiana Code § 31-17-2-21 provides that a trial court may not modify a child 

custody order unless (1) the modification is in the best interests of the child and 

(2) there is a substantial change in one or more of the factors that the court may 

consider under I.C. § 31-17-2-8. I.C. § 31-17-2-8 provides that the trial court is 

to consider all relevant factors,3including:

(1) The age and sex of the child.

(2) The wishes of the child’s parent or parents.

(3) The wishes of the child, with more consideration given to the 

child’s wishes if the child is at least fourteen (14) years of age.

 

3

In her reply brief, Mother argues that the trial court was prohibited from considering factors other than 

those specifically enumerated in I.C. § 31-17-2-8. The statute, however, provides that the trial court must 

consider all relevant factors, including but not limited to those specifically set forth therein. To the extent 

that the trial court considered additional factors not listed in I.C. § 31-17-2-8, such consideration was not 

error.
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(4) The interaction and interrelationship of the child with:

(A) the child’s parent or parents;

(B) the child’s sibling; and

(C) any other person who may significantly affect the 

child’s best interests.

(5) The child’s adjustment to the child’s:

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either 

parent.

(8) Evidence that the child has been cared for by a de facto 

custodian . . . .

[13] Mother claims that the trial court erred by failing to consider the statutory 

factors set forth above.4 In substance, however, she simply argues that the trial 

 

4 To the extent that Mother argues that the trial court should have entered special findings with respect to 

each factor set forth in I.C. § 31-17-2-8, we note that Mother failed to request special findings. See In re 
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court did not weigh the factors and the evidence as she believes it should have. 

These arguments are nothing more than requests to reweigh the evidence, 

which we will not indulge on appeal. 

[14] The trial court made the following relevant findings with respect to its decision 

to modify custody:

The [C]hildren’s age and continued struggles between the parties, 

among all other factors that the Court may consider, demonstrate 

a substantial and continuing change in circumstances that render 

the current custody arrangement unreasonable and no longer in 

the [C]hildren’s best interests. . . .

The Court finds that changing custody to Father will result in 

more stability for the children emotionally and that Father is 

more likely to facilitate meaningful parenting time than Mother. . 

. .

[15] Mother does not directly challenge these findings, and they are supported by the 

evidence.5 In addition to the Children’s ages and the increasingly contentious 

 

Marriage of Harpenau, 17 N.E.3d 342, 347 n.3 (Ind. Ct. App. 2014) (explaining that a trial court modifying 

custody is not required to enter special findings unless requested by a party). 

5 Mother argues in her Reply Brief that the trial court was prohibited from considering evidence of events 

taking place before the July 6, 2016 order denying Father’s previous petition to modify custody. In support, 

Mother cites I.C. § 31-17-2-21(c), which provides that a “court shall not hear evidence on a matter occurring 

before the last custody proceeding between the parties unless the matter relates to a change in the factors 

relating to the best interests of the child as described by section 8 and, if applicable, section 8.5 of this 

chapter.” As the statutory language makes clear, I.C. § 31-17-2-21(c) does not absolutely restrict the trial 

court from considering evidence of events occurring before the last custody proceeding—such evidence may 

be considered if relates to a change in the factors relating to the best interests of the child set forth in I.C. § 31-

17-2-8. To the extent the trial court might have considered evidence of events taking place prior to the July 6, 

2016 order, it was permitted to do so for the purposes of identifying the parents’ and the Children’s ongoing 

patterns of behavior and the current nature of their relationships and interactions. See also Parks v. Grube, 934 

N.E.2d 111, 117 (Ind. Ct. App. 2010) (finding no error in the consideration of facts occurring before previous 
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relationship between the parents, the wishes of the parents with respect to

custody have also changed, given that both requested modification. Evidence 

was also presented that the relationship between J.M. and M.M. has suffered 

under the current custody arrangement—M.M. tends to identify with Mother 

and J.M. tends to identify with Father, and the hostility between the parents has 

driven a wedge between the two eldest children. The trial court was within its 

discretion to conclude that living in different homes every other week has 

contributed to the rift between J.M. and M.M.6 

[16] Although M.M. expressed a desire to live with Mother and M.M.’s counselor 

opined that moving in with Father was very likely to cause M.M. to suffer 

increased anxiety, the counselor further noted that M.M. had become “more 

resilient” since she began seeing her in the fall of 2016 and had developed skills 

to cope with her anxiety. Appellant’s Appendix at 58. The counselor further 

opined that the week-on, week-off parenting time schedule was very hard on all 

of the Children and that M.M. was likely to be “higher functioning” if she lived 

with Father because Father’s home offers more structure and guidance. Id. 

The counselor also stated that she believed Mother and M.M. spoke excessively 

about court and custody, to the point that the counselor implemented a rule 

 

custody order because the evidence was considered “in the context of its continuing effect on the Children” 

(emphasis in original)); Wiggins v. Davis, 737 N.E.2d 437, 441 (Ind. Ct. App. 2000) (finding no error in 

consideration of events occurring before the previous custody order because the events “had a connection to” 

subsequent events). 

6 Neither party sought to modify custody of J.M.
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whereby Mother and M.M. agreed to discuss these issues for no more than five 

minutes per day. 

[17] Additionally, H.M. told the guardian ad litem that she found the current 

custody arrangement difficult to manage and expressed a desire to live with 

Father full time. H.M. stated that Mother became angry with her when she 

said she wanted to live with Father, and one time when they were discussing 

the issue in the car, Mother slammed on the brakes in middle of traffic and 

began yelling at her. H.M. further stated that Mother told her “lies” about 

Father, claiming that Father put Mother in jail and wants to take H.M. away 

from Mother and never let her come back. Id. at 57. H.M. stated that she does 

not hear Father talk about Mother very much. H.M. also stated that Mother 

often works too late to help her with her homework and often got her to 

activities late. H.M. said she would prefer to live with Father because his house 

is cleaner, she knows her laundry will always be done, she will get to places on 

time, and because Father and her stepmother are always around to help her 

with her homework. All of these facts are sufficient to support the trial court’s 

order modifying custody.

2. Contempt

[18] Mother next argues that the trial court abused its discretion in finding her to be 

in contempt. A determination of whether a party is in contempt of court is a 

matter within the trial court’s sound discretion, and we reverse only where there 

has been an abuse of that discretion. Richardson v. Hansrote, 883 N.E.2d 1165, 
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1171 (Ind. Ct. App. 2008). Our review is limited to considering the evidence 

and reasonable inferences drawn therefrom that support the trial court’s 

judgment. Piercey v. Piercey, 727 N.E.2d 26, 31 (Ind. Ct. App. 2000).

[19] Contempt of court “involves disobedience of a court which undermines the 

court’s authority, justice, and dignity.” Srivastava v. Indianapolis Hebrew 

Congregation, Inc., 779 N.E.2d 52, 60 (Ind. Ct. App. 2002), trans. denied. There 

are two types of contempt—direct and indirect. Id. Mother was found to be in 

indirect contempt, which involves actions outside the trial court’s personal 

knowledge. In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50, 61–62 

(Ind. Ct. App. 2005). “Willful disobedience of any lawfully entered court order 

of which the offender had notice is indirect contempt.” Francies v. Francies, 759 

N.E.2d 1106, 1118 (Ind. Ct. App. 2001), trans. denied.

[20] In its July 3, 2017 order, the trial court found Mother to be in contempt on two 

separate grounds—for discussing custody issues with M.M. and for failing to 

abide by the order of the court regarding tax exemptions in 2014 and 2015. 

Mother challenges both findings, and we address her arguments in turn.

[21] With respect to the first contempt finding, Mother does not dispute that she 

discussed the litigation with M.M. Indeed, M.M.’s counselor indicated that 

Mother and M.M. engaged in such discussion so excessively that she found it 

necessary to institute a rule that M.M. and Mother would be allowed to discuss 

such matters for no more than five minutes per day. On appeal, Mother argues 

that no court order prohibited her from engaging in such discussions with M.M.
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[22] The trial court determined that Mother was prohibited from discussing the 

litigation with M.M. under Paragraph 7 of the mediated settlement agreement, 

which provides as follows:

7. Non-disparagement: Each party shall totally and completely 

refrain from discussing the other with the children except in a

manner which is supportive of or complimentary to the other. 

Each party shall refrain from any effort to alienate the children 

from the other parent, the absolute aim of the parents is to be a 

healthy and respectful relationship of the children with each

parent. Disputes between the parents regarding the above shall 

be resolved between themselves and neither shall include the 

children in these disputes or their resolution.

Appellant’s Appendix Vol. 2 at 5 (emphasis supplied). According to Mother, the 

last sentence of this paragraph refers only to the subject matter of Paragraph 7—

in other words, Mother asserts the language “regarding the above” means that 

the parents were prohibited only from involving their children in disputes about 

disparagement or alienation. Id. We are unconvinced. Paragraph 7 was part of 

a larger mediated settlement agreement, and the preceding paragraphs 

addressed custody and other matters. The phrase “regarding the above” as used 

in Paragraph 7 encompasses disputes regarding the matters set out in all of 

those preceding paragraphs. Contrary to Mother’s argument on appeal, we see 

nothing ambiguous or indefinite about the order. 

[23] With respect to the contempt finding based on Mother’s failure to abide by a 

court order concerning tax exemptions, we note that at the relevant times, the 

order regarding tax exemptions provided that Mother would claim M.M. every 
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year, Father would claim J.M. every year, and Mother and Father would 

alternate claiming H.M., with Father claiming her in even-numbered years and 

Mother claiming her in odd-numbered years. Mother concedes that she 

claimed H.M. in 2014, a year in which Father was entitled to claim her. 

Mother argues, however, that her actions were not willful. Mother claims that 

her tax preparer mistakenly claimed H.M., and that once Mother became aware 

of the mistake, she offered to file an amended return. But by the time of the 

hearing in this matter, Mother still had not done so. Mother suggests that the 

onus was on Father to instruct her on how he wanted her to resolve the 

problem, but the court order regarding tax exemptions spoke for itself. 

[24] Mother also argues that the trial court’s contempt finding relating to her 2015 

tax return is “totally unsupported by evidence and is completely contrary to 

direct evidence presented to the court.” Appellant’s Brief at 26. In his October 

25, 2016 motion for rule to show cause7relating to the tax exemptions, Father 

asserted that his 2015 tax return was rejected because Mother had already 

claimed J.M. in violation of the court’s order. Father also testified to this 

effect. Nevertheless, Mother directs our attention to Exhibit E, which is a copy 

of a 2015 tax return prepared on her behalf in which only M.M. is claimed as a 

dependent. It is apparent, however, that Exhibit E is an amended tax return. 

Indeed, it is dated November 14, 2016—approximately three weeks after Father 

filed his motion for rule to show cause. Moreover, Exhibit F, a Form 1040X 

 

7 We have taken judicial notice of this motion because it was omitted from Mother’s appendix.
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Amended Income Tax Return for 2015 prepared on Mother’s behalf, is also 

dated November 14, 2016, and it reflects that the return was amended to 

“change . . . exemptions for dependents, remove [J.M.]” Exhibits, Vol. 6, 

Respondent’s Exhibit F. It is therefore apparent that Mother had claimed J.M. 

as a dependent in her original 2015 tax return, which does not appear to have 

been entered into evidence. This was in violation of the court order, which 

provided that Father would claim J.M. every year. Further, as Mother testified 

at the hearing, she had not yet filed her amended tax return for 2015. 

Accordingly, the trial court’s contempt finding was supported by the evidence.

3. Income Imputation

[25] Mother also argues that the trial court abused its discretion in calculating the 

parties’ respective child support obligations because it declined to impute 

income to Father based on his current wife’s contributions to household 

expenses. Under the income shares model set forth in the Indiana Child 

Support Guidelines, the cost of supporting the children is apportioned between 

the parents according to their means, and the overarching premise is that 

children should receive the same portion of parental income after a dissolution 

that they would have received had the family remained intact. Glover v. 

Torrance, 723 N.E.2d 924, 936 (Ind. Ct. App. 2000). A trial court’s calculation 

of child support is presumed valid, and we will review its decision only for an 

abuse of discretion. Thompson v. Thompson, 811 N.E.2d 888, 924 (Ind. Ct. App. 

2004), trans. denied. An abuse of discretion occurs if the trial court’s decision is 
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clearly against the logic and effect of the facts and circumstances presented or if 

the court has misinterpreted the law. Id.

[26] “When fashioning a child support order, the trial court’s first task is to 

determine the weekly gross income of each parent.” Ratliff v. Ratliff, 804 N.E.2d 

237, 245 (Ind. Ct. App. 2004). “Weekly gross income” is defined to include not 

only actual income from employment, but also potential income if the parent is 

unemployed or underemployed and, as is relevant here, imputed income from 

in-kind benefits. Id. See also Ind. Child Support Guideline 3(A). With respect 

to in-kind benefits provided by a subsequent spouse, the commentary to the 

guidelines provides as follows:

Whether or not income should be imputed to a parent whose 

living expenses have been substantially reduced due to financial 

resources other than the parent’s own earning capabilities is also 

a fact-sensitive situation requiring careful consideration of the 

evidence in each case. It may be inappropriate to include as 

gross income occasional gifts received. However, regular and 

continuing payments made by a family member, subsequent 

spouse, roommate or live-in friend that reduce the parent’s costs 

for rent, utilities, or groceries, may be the basis for imputing 

income. If there were specific living expenses being paid by a 

parent which are now being regularly and continually paid by 

that parent’s current spouse or a third party, the assumed 

expenses may be considered imputed income to the parent 

receiving the benefit. The marriage of a parent to a spouse with 

sufficient affluence to obviate the necessity for the parent to work 

may give rise to a situation where either potential income or 

imputed income or both should be considered in arriving at gross 

income.
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Child Supp. G. 3(A), cmt. d. 

[27] On appeal, Mother argues that under the Guidelines, “[t]o ignore in-kind 

benefits [in the form of a subsequent spouse’s income] is just as erroneous as if a 

trial court were to ignore a regular paycheck earned from regular and steady 

employment and find that despite the regular paycheck a parent had no income 

from that employment.” Appellant’s Brief at 21-22. A review of the relevant case 

law reveals that the matter is not as clear-cut as Mother would have us believe.

[28] In Gilpin v. Gilpin, 664 N.E.2d 766, 767 (Ind. Ct. App. 1996), this court reversed 

the trial court’s child support order due to its failure to consider evidence of the 

contribution of the mother’s subsequent spouse toward the mother’s monthly 

expenses. Specifically, the court reasoned as follows: 

The evidence discloses that Brenda’s monthly expenses are 

approximately $2,400.00. Of this amount, her subsequent spouse 

contributes one-half, or roughly $1,200.00. Testimony also 

disclosed that included in this amount is Brenda’s subsequent 

spouse’s contribution towards mortgage payments on a house 

which she owned prior to her remarriage. The trial court 

improperly failed to consider this evidence in its calculation of 

Brenda’s income for purposes of her petition.

Id. 

[29] In Glass v. Oeder, 716 N.E.2d 413, 417-18 (Ind. 1999), on the other hand, our 

Supreme Court found no error in the trial court’s failure to impute income 

based on a subsequent spouse’s contributions to living expenses. The court 

noted that the subsequent spouse’s contributions presumably freed up 
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additional money for the support of the children and could properly be 

considered in calculating the mother’s gross weekly income. The court noted

further, however, that “the trial court found no imputed income from Oeder’s 

spouse after balancing these factors and others[.]” Id. The court found no error 

in the trial court’s weighing of these factors. Id.

[30] This court had occasion to address the issue again in Carmichael v. Siegel, 754 

N.E.2d 619 (Ind. Ct. App. 2001). Although the court reversed on another basis, 

it nevertheless discussed the mother’s subsequent spouse’s income because the 

issue was likely to arise on remand. Id. at 630. The court cautioned that 

“[g]reat care should be taken on remand if the trial court does decide to impute 

income” based on her subsequent spouse’s contributions to her expenses. Id. 

The court discussed Gilpin and Glass, and provided the following guidance: 

We conclude that when a trial court chooses to impute income to 

a parent based upon expenses paid by his or her current spouse, 

there should be some consideration of the parent’s historical 

expenses before remarriage and how much of those expenses 

have now been assumed by the current spouse. . . .

If there were expenses being paid by Mother prior to her 

remarriage that are now being paid by her current husband, that 

benefit may be considered. In that instance, Mother’s remarriage 

has in fact “freed up” money for child support that was not 

previously available, and such payments may be imputed as 

income because they have reduced Mother’s cost of living from 

what it was before remarriage.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 20 of 28

Id. at 631. Taken together, Gilpin, Glass, and Carmichael make it clear that trial 

courts have considerable discretion in determining whether to impute income 

based on a subsequent spouse’s income.

[31] Father is a self-employed auto mechanic. In the past, he has made about $1000 

per week, but due to economic reversals in the automotive industry, his income 

has dropped to $529 per week.8 Father’s wife is an attorney, and their joint 

adjusted gross income for 2015 was $91,041. Mother has not directed our 

attention to any evidence concerning Father’s historical expenses before his 

remarriage and the extent to which those expenses have been assumed by his 

wife. Thus, it is unclear whether Father’s remarriage has in fact “freed up” 

additional funds. Indeed, based on the evidence presented, it appears that 

Father’s monthly expenses increased significantly following his remarriage. 

Specifically, he and his wife purchased a new home and their mortgage 

payment is approximately $5000 per month. Mother’s Exhibit 2 indicates that 

that Father and his wife’s expenses regularly exceed their income, and Father 

testified that they have had to use a line of credit on their house to pay living 

expenses. 

[32] We must also note that the record reflects that Mother has not paid the 

mortgage on her primary residence since at least 2012, and she recently 

inherited a second home, which she testified that she planned to either sell, rent, 

 

8

Father testified that he is not currently paying himself any income from his business, but he listed this 

amount as potential income. 
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 21 of 28

or use as a “weekend home” for herself and the Children. Transcript Vol. 2 at 

219. Although Mother has not paid rent or a mortgage for several years, the 

trial court declined to impute income to her on that basis. See Glass, 716 N.E.2d 

at 417 (affirming the trial court’s decision to impute income to the father on the 

basis that he lived rent-free in his family home, which resulted in reduced living 

expenses and freed up money for support of the children). It appears to us that 

the trial court’s decision not to impute income to either parent was an attempt 

to balance the equities in a situation where the precise value of the in-kind 

benefits each parent received was uncertain. Such balancing is a matter 

squarely within the trial court’s discretion, and we will not second-guess its

decision in that regard. 

4. Tax Exemptions

[33] Mother also argues that the trial court abused its discretion in granting Father

the right to claim all three of the Children as exemptions on his income tax 

returns going forward. Specifically, Mother argues that trial court failed to 

consider the relevant factors set forth in in the Indiana Child Support 

Guidelines. Child Support Guideline 9 provides, in relevant part, as follows:

Development of these Guidelines did not take into consideration 

the awarding of the income tax exemption. Instead, it is required 

[that] each case be reviewed on an individual basis and that a 

decision be made in the context of each case. . . .

A court is required to specify in a child support order which 

parent may claim the child(ren) as dependents for tax purposes. 
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 22 of 28

In determining when to order a release of exemptions, it is 

required that the following factors be considered:

(1) the value of the exemption at the marginal tax rate of 

each parent;

(2) the income of each parent;

(3) the age of the child(ren) and how long the exemption 

will be available;

(4) the percentage of the cost of supporting the child(ren) 

borne by each parent;

(5) the financial aid benefit for post-secondary education 

for the child(ren);

(6) the financial burden assumed by each parent under the 

property settlement in the case; and

(7) any other relevant factors, (including health insurance 

tax subsidies or tax penalties under the Affordable Care 

Act).

[34] Mother argues that the trial court’s failure to enter findings explaining its 

decision to award the exemptions to Father amounts to reversible error. We 

again note that in the absence of a Trial Rule 52 request, the trial court was not 

required to enter special findings and conclusions thereon. If Mother wished to 

have specific findings, she should have requested them. Further, in reviewing a 

general judgment, we will presume the trial court followed the applicable law 
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 23 of 28

and affirm if its decision can be sustained on any legal theory consistent with 

the evidence. Sims v. Sims, 770 N.E.2d 860, 864 (Ind. Ct. App. 2002).

[35] Although most of the specific factors set forth in Child Support Guideline 9 

would appear to support apportioning at least some of the tax exemptions to 

Mother, the Guideline specifically provides that the trial court may consider 

“any other relevant factors” and that each case should be considered on an 

individual basis. In this case, Father is now the primary physical custodian of 

all three of the Children, and Mother has demonstrated an unwillingness or 

inability to abide by court orders splitting and/or alternating the tax 

exemptions. Under these circumstances, we cannot conclude that the trial 

court’s decision to award the right to claim the tax exemptions to Father was an 

abuse of discretion.

5. Mother’s Significant Other

[36] Mother also argues that the trial court abused its discretion in restricting Price 

from being present at parenting time exchanges, school pick-ups and drop-offs, 

and the Children’s extracurricular activities. Mother cites no authority in 

support of her argument that such restrictions exceeded the trial court’s 

authority, and her argument in this regard is therefore waived. See McCollough 

v. Noblesville Sch., 63 N.E.3d 334, 346 (Ind. Ct. App. 2016) (finding appellate 

claim waived for failure to cite relevant authority or make cogent argument), 

trans. denied. 
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 24 of 28

[37] Waiver notwithstanding, Mother’s argument fails. “In all parenting time 

controversies, courts are required to give foremost consideration to the best 

interests of the child.” A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 120, 125 (Ind. 

Ct. App. 2004), trans. denied. The trial court’s resolution of such issues will be 

upheld if the record reveals a rational basis supporting the decision. Id. at 124-

125 (upholding a trial court’s order prohibiting the father from encouraging or 

allowing the child to participate in holiday-related activities that conflicted with 

the tenets of the child’s and custodial mother’s religion).

[38] As an initial matter, we note that in her issue statement, Mother characterizes 

the order as “prohibiting [Price] from any contact with the [C]hildren[.]” 

Appellant’s Brief at 34. This is a misstatement of the order; rather, the trial court 

has ordered that Mother is not to permit Price to be present at parenting time 

exchanges, school pick-ups and drop-offs, and the Children’s extracurricular 

activities. In other words, the trial court has prohibited Mother from allowing 

Price to be present at times when Father is also likely to be present, along with 

the Children. Given the long history of conflict between Father and Price in 

such situations and the obvious potential for harm to the Children resulting 

therefrom, these restrictions were reasonable, and they do not amount to an 

undue restriction on Mother’s parenting time.

9

 Mother’s assertion that these 

 

9 Mother also appears to take issue with the trial court’s order jailing Price for direct contempt for signaling 

answers to Mother during her testimony at a hearing on August 30, 2016. Mother lacks standing to 

challenge the trial court’s order holding someone else in contempt. Furthermore, to the extent Mother argues 

that the restrictions the trial court placed on Price were an additional punishment for his prior contempt, we 

find nothing in the record to support such an assertion. Although the trial court mentioned Price’s prior 
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 25 of 28

restrictions were in excess of what Father had requested is also inaccurate,10 and 

in any event, Mother has not directed our attention to any authority suggesting 

that the trial court is limited to ordering only such restrictions as have been 

requested by the parties. Mother has not established reversible error in this 

regard. 

6. Attorney Fees

[39] Finally, Mother challenges the trial court’s award of attorney fees. In postdissolution proceedings, a trial court may order a party to pay a reasonable 

amount toward the opposing party’s attorney fees. Bessolo v. Rosario, 966 

N.E.2d 725, 733 (Ind. Ct. App. 2012), trans. denied. Trial courts have broad 

discretion in awarding attorney fees, and their decisions will be reversed only 

when they are clearly against the logic and effect of the facts and circumstances 

before the court. Id. In assessing attorney fees, the trial court may consider 

such factors as the parties’ resources, their relative earning ability, and other 

factors bearing on the reasonableness of the award. Further, any misconduct by 

a party that directly results in the other party incurring additional attorney fees 

may be taken into account. Id. 

 

contempt in entering the relevant restrictions, it did so to provide an example of the ways in which Price has 

behaved inappropriately with respect to these proceedings. Price’s behavior both in and out of court is 

relevant and provides ample support for the trial court’s restrictions.

10 Because Mother omitted Father’s request to restrict Price’s presence from her appendix, we have taken 

judicial notice thereof.
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 26 of 28

[40] Here, the trial court explained the reasons behind its decision to award attorney 

fees. Specifically, the trial court found that “based upon the parties’ respective 

incomes as well as multiple contempt findings against Mother in this matter, 

and numerous continuances requested by Mother to which Father objected, the 

Court orders the Mother to be responsible for Father’s attorney fees which have 

been incurred in the amount of $14,000.00.” July 3, 2017 Order, ¶ 22. Mother 

argues that these fees are excessive and unreasonable. We are unconvinced.

[41] The trial court may consider a number of factors in determining the 

reasonableness of a fee, but the hours worked and the rate charged are a 

common starting point. Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 

995, 1009 (Ind. Ct. App. 2015). Further, trial court judges possess personal 

expertise that they may use to determine reasonable attorney fees. Masters v. 

Masters, 43 N.E.3d 570, 577 (Ind. 2015). At the hearing on May 23, 2017, 

Father’s attorney testified that since July 2016, he had worked 42.4 hours on 

the case at a rate of $300 per hour, resulting in a bill totaling $12,720.00 at that 

time. It appears that the $14,000 amount awarded by the trial court took into 

account the fact that the hearing continued on June 13, 2017 and resulted in the 

accumulation of additional fees. 

[42] Mother argues that this award must be reversed because no evidence was 

presented concerning the reasonableness of the fees. As noted above, however, 

trial judges have personal expertise on such matters, and Mother did not crossexamine Father’s counsel or dispute the reasonableness of the fees requested at 

the hearing. Even more telling, however, is Mother’s own request for attorney 
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 27 of 28

fees, which the trial court denied. Mother’s counsel filed an affidavit asserting 

that he had worked 68.8 hours on the case at a rate of $250 per hour, resulting 

in a total fee of $17,200.00. Mother’s counsel averred that his hourly rate was 

reasonable and that the amount of time expended on the case was necessary 

and justifiable. Mother’s argument that the trial court’s award of $14,000 in 

attorney fees to Father is unreasonable rings hollow in light of her own request 

for attorney fees in the amount of $17,200. 

[43] Mother also attempts to downplay her own conduct that caused Father to incur 

additional attorney fees, asserting that “only two” contempt findings were made 

and that Father had to file only “a single pleading” to compel discovery and 

that Father’s motion to quash overly broad discovery was likewise “a single 

pleading.” Appellant’s Brief at 31. These arguments are merely requests to 

reweigh the evidence. Nevertheless, we note that in addition to the two 

contempt findings made in the July 3, 2017 order, Mother was found in 

contempt on July 5, 2016, for failing to provide Father with proof of insurance 

coverage for the Children and ordered to pay $1,500 of Father’s attorney fees as 

a sanction. Mother was again found in contempt on August 30, 2016, this time 

for interfering with Father’s parenting time with M.M., and she was 

incarcerated and ordered to pay $750 of Father’s attorney fees as a sanction. As 

for Mother’s arguments concerning the effort Father’s counsel was required to 

expend to resolve discovery disputes, we note that Mother does not take into 

account the time counsel presumably spent attempting to resolve such matters 
Court of Appeals of Indiana | Memorandum Decision 29A05-1707-DR-1637 | February 28, 2018 Page 28 of 28

without the intervention of the court. Further, Mother does not dispute that she 

requested several continuances.

[44] Mother earns far more money than Father and is consequently more capable of 

paying attorney fees, and her own misconduct and dilatory tactics directly 

resulted in Father incurring additional attorney fees. Further, Mother has not 

established that the amount awarded is unreasonable. Under these facts and 

circumstances, we cannot conclude that the trial court’s attorney fee award was 

an abuse of discretion. 

[45] Judgment affirmed.

[46] May, J. and Vaidik C.J., concur.