Carolyn F. Brundage v. Brian R. Brundage (mem. dec.)
45A04-1603-DR-506
| Ind. Ct. App. | Dec 12, 2016Background
- Carolyn (Mother) and Brian Brundage (Father) divorced after Mother admitted an extramarital affair; they have two children (A.B., b.2001; B.B., b.2008).
- Father filed for dissolution in Jan. 2014; a provisional order awarded joint custody and $1,000/month provisional maintenance to Mother; Father stopped paying maintenance in Oct. 2014 (about $14,000 arrearage).
- Counseling and a CHINS petition occurred after the separation; counselors found the older child A.B. alienated from Mother and recommended a visitation hiatus; DCS ultimately halted further visitation between A.B. and Mother for a time.
- At final hearing, trial court awarded Father primary physical custody, ordered Mother to pay child support ($119/week based on tax-return incomes), divided marital property (with many values uncertain), and ordered Father to pay $25,000 in Mother’s attorney fees (to be paid directly to Mother’s lawyer).
- On appeal, Mother challenged custody, child support, property division/valuation, and failure to enforce provisional arrears; Father cross-appealed the attorney-fee payment to counsel. The Court of Appeals affirmed most rulings, remanded to order Father to pay the $14,000 provisional maintenance arrearage, and modified the attorney-fee disposition (direct payment split).
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Custody — primary physical custody to Father | Trial court abused discretion because Father engaged in parental alienation and is unfit | Father is fit; children (esp. A.B.) are alienated and reunification with Mother is not feasible now | Affirmed: court did not abuse discretion; evidence showed severe strain and A.B.’s refusal justified award to Father with ordered reunification therapy |
| Child support — income attribution | Father’s income understated; trial court should account for diverted corporate payments and higher earning capacity | Trial court’s use of reported tax incomes was reasonable given indeterminate/conflicting evidence | Affirmed: trial court reasonably used recent tax returns; not an abuse of discretion |
| Marital estate valuation/division | Court failed to assign values to many assets and unequally divided without support (e.g., Lexus LFA proceeds, Intercon interest) | Some assets were corporate or lacked proof; court’s valuations were supported by evidence | Affirmed: valuations within evidentiary scope; unequal division was not unsupported and actually favored Mother on quantified assets |
| Provisional maintenance arrearage | Trial court erred by not addressing Father’s $14,000 failure to pay provisional maintenance | Silence reflects changed circumstances excusing payments | Reversed/Remanded: trial court made no findings to excuse nonpayment; remand to order Father to satisfy $14,000 arrearage |
| Attorney fees — payment to Mother’s counsel | Award excessive or improper to be paid wholly to counsel | Fees warranted given parties’ resources and Father’s misconduct | Partially reversed: $25,000 award affirmed in amount but ordering all to counsel was abuse; remanded to require $10,950.21 to counsel and $14,049.79 to Mother |
Key Cases Cited
- Fowler v. Perry, 830 N.E.2d 97 (Ind. Ct. App.) (standard for reviewing trial court findings and conclusions)
- Young v. Young, 891 N.E.2d 1045 (Ind. 2008) (presumptive validity of trial court child support calculations)
- Kinsey v. Kinsey, 640 N.E.2d 42 (Ind. 1994) (reversal of child support deviation only when clearly against logic and effect of facts)
- Crowley v. Crowley, 708 N.E.2d 42 (Ind. Ct. App.) (trial court may order provisional maintenance arrearage paid on dissolution)
- Bojrab v. Bojrab, 810 N.E.2d 1008 (Ind.) (overruling on other grounds referenced re provisional maintenance)
- Augspurger v. Hudson, 802 N.E.2d 503 (Ind. Ct. App.) (standard/deference for property division in dissolution)
- Leonard v. Leonard, 877 N.E.2d 896 (Ind. Ct. App.) (trial court’s broad discretion in valuing marital assets)
- Webb v. Schleutker, 891 N.E.2d 1144 (Ind. Ct. App.) (valuation date and evidentiary support for asset valuation)