Kieffer v. Trockman
No. 29A02-1509-JP-1499
Court of Appeals of Indiana
May 5, 2016
In aggravation, the parties cite Respondent’s prior disciplinary history, his similar acts of neglect in other cases handled contemporaneously with Client’s case, and his substantial experience in the practice of law. In mitigation, the parties cite Respondent’s cooperation with the Commission and his acceptance of responsibility.
Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:
1.3: Failure to act with reasonable diligence and promptness.
1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.
1.4(a)(4): Failure to comply promptly with a client’s reasonable requests for information.
Discipline: The parties propose the appropriate discipline is a suspension of 180 days without automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.
For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days, without automatic reinstatement, beginning September 1, 2016. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).
The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.
All Justices concur.
Theodore William KIEFFER,
Appellant-Respondent,
v.
Jennifer TROCKMAN, Appellee-
Petitioner.
No. 29A02-1509-JP-1499.
Court of Appeals of Indiana.
May 5, 2016.
Ordered Published May 25, 2016.
Cynthia A. Marcus, John J. Uskert, Marcus Law Firm, LLC, Fishers, IN, Attorneys for Appellee.
Case Summary
CRONE, Judge.
[1] Theodore Kieffer (“Father”) and Jennifer Trockman (“Mother”) are the biological parents of A.T. Father and Mother filed cross-petitions to establish paternity, custody, parenting time, and support. During the proceedings, Mother obtained an ex parte protective order against Father and asked that it be extended. After a hearing, the trial court issued an order establishing Father’s paternity; granting Mother sole custody of A.T., with Father to receive parenting time pursuant to the Indiana Parenting Time Guidelines (“the Guidelines”); ordering Father to pay child support, most of Mother’s attorney’s fees, and all of the costs for a parenting coordinator and a custody evaluation; and extending Mother’s protective order for two years.
[2] On appeal, Father contends that the trial court erred in ordering him to pay the aforementioned attorney’s fees and costs; in calculating his child support obligation; and in extending the protective order. Finding no reversible error, we affirm.
Facts and Procedural History
[3] Mother gave birth to A.T. in September 2013, and the parties executed a paternity affidavit the next day. The parties initially agreed to joint custody, but because they failed to submit genetic test results to a local health officer within sixty days of A.T.’s birth, Mother obtained sole custody pursuant to
[4] In March 2014, Mother filed a petition to establish paternity, custody, parenting time, and support. In April 2014, Father filed a cross-petition seeking joint custody. In August 2014, Mother filed a petition for a protective order against Father based on incidents that occurred in February and August 2014; the petition was denied without a hearing. In December 2014, Mother filed a second petition for a protective order based on the same two incidents as well as several subsequent incidents; a protective order was issued ex parte, and the matter was consolidated with the paternity proceeding. Over Mother’s objection, Father filed a petition for a custody evaluation, which was performed by Dr. John Ehrmann.
[5] A final hearing was held in July 2015. In August 2015, the trial court issued an order containing the following relevant findings and conclusions:
12. Pursuant to Father’s motion, the Court ordered a custody evaluation be performed by Dr. Ehrmann.
13. Dr. Ehrmann testified that both parents exhibited some degree of distrust towards each other. He also testified that, while Mother was without sig-
14. Dr. Ehrmann reviewed hours of Father’s recordings of parenting exchanges. He testified that [Mother] appeared to be attempting to be both reasonable and pleasant throughout the video. Father was often angry, nasty and treated [M]other with contempt. After watching the videos, Dr. Ehrmann concluded that it was not difficult to understand why Mother feels threatened and intimidated by Father.
15. Dr. Ehrmann concluded that [A.T.] appears to be a fairly happy, healthy, normally developing child. She exhibited emotional bonding and attachment to both of her parents. She also evidenced a bond with [Mother’s older daughter by her ex-husband] and her maternal grandmother.
16. Dr. Ehrmann testified that there was a great deal of conflict between these parents that is likely to continue.
17. Dr. Ehrmann testified that Father videotapes the child’s medical appointments because he has a hard time trusting doctors. He also testified that Father claimed that Mother had not consulted with him regarding the child having ear tubes inserted. Father later acknowledged an inconsistency in that claim—not only had [M]other consulted with him, she had taken the child to the physician that Father had recommended. Father had even attended that appointment.
18. At the appointment, Father’s behavior was so outrageous that the attending doctor removed the child from the examining room. The physician’s office staff then called security after Father repeatedly threatened Mother. Mother was in tears when she left the appointment with the minor child. Dr. Ehrmann indicated that as a result of Father’s concerns, Mother sought a second opinion from an ENT specialist recommended by the child’s pediatrician. Both physicians recommended ear tubes. Dr. Ehrmann also testified that the text messages between the parties regarding medical issues showed extensive conflict. Mother wanted to follow the recommendations of the child’s healthcare provider. Father often refused to talk to the healthcare provider and then opposed each provider’s recommendations. Dr. Ehrmann indicated that Father’s positions regarding the child appeared to be more about “retaliation” against Mother than the welfare of the child.
19. Dr. Ehrmann recommended that [M]other should have sole custody of the minor child.
20. The high-conflict relationship between the parents was further evidenced by the hundreds of pages of text messages between the parties where Father was insulting, demeaning, and debasing.
21. Father entered Mother’s home without an invitation in the early hours of the morning after drinking alcohol and was threatening. Mother and her family were terrified to find him in the house.
22. At another time, following repeated demeaning, and intimidating communications, Father came to the house when he specifically knew that he had been asked not to come.
23. After consideration of all relevant factors, including those set forth in
25. Father has exercised regular parenting time over the last year. However, as provided for by the IPTG, the parenting time has not included overnights because Father had limited contact with the child during the first months of her life. The Court is concerned over the anger and impulsivity demonstrated by Father. Father is ordered to attend counseling with Dr. William Steele, who is familiar with working in the context of high-conflict parenting.
26. After the parents have met with the Parenting Coordinator ... at least once, and after Father has met with Dr. Steele at least once, overnights may be instituted on a “trial-run” basis. The Parenting Coordinator would determine whether the trial-runs were successful or needed to be reintroduced at a later time.
27. Dr. Ehrmann recommended that Jonni L. Gonso, Ph.D. be appointed as a level 3 Parenting Coordinator because of the high-conflict nature of the relationship between [Mother] and [Father]. Father does not oppose the appointment of a Parenting Coordinator; however, he proposes a level 2 Coordinator and does not agree on the appointment of Jonni Gonso, Ph.D. Father named a panel of three (3) potential parenting coordinators.
28. Mother has attempted to communicate with Father in a respectful and courteous manner. Mother has attempted to keep Father abreast of all medical issues, as well as the child’s developmental progress.
29. Father has repeatedly communicated with Mother in a contemptuous, debasing and angry manner. He has disrespected her and called her names. He has exhibited this behavior verbally in front of the child.
30. Father is a medical doctor who has completed his residency in medicine and has decided to take an additional two years in a fellowship. Mother makes about $37,555/year as a medical recruiter.
31. The [C]ourt appoints Jonni T. Gonso, Ph.D. as a Level 3 Parenting Coordinator.
32. After considering the behavior1 of the two parties and the earning ability of the two parties, the Court allocates the cost of the Parenting Coordinator to Father.
33. Initially, all communication regarding the child shall be written in a spiral bound notebook, which will be passed back and forth between the parents at parenting time exchanges in a bag with the child’s clothing. Only matters directly relating to the child should be put in the notebook. Urgent matters such as medical emergencies or delays in parenting time exchange should be texted. Any change to this paragraph of the Order shall be at the discretion of the Parenting Coordinator.
34. There will be no negative communication, verbal or otherwise, at the parenting time exchanges. There shall be no name calling, no denigrating or debasing language, and no curse words.
37. Child support shall be pursuant to the Indiana Child Support Guidelines. The Court attaches its child support obligation worksheet (CSOW) as its own “Exhibit 1.” The Court finds that Mother has one prior born child for whom there is no child support order, but whom Mother has a legal duty to support. Following review of [Mother’s] financial declaration, the court finds that $95/week is a reasonable sum to attribute to that duty.
38. The [C]ourt finds that there is no cost to Father for the child’s health insurance. The Court further finds that the cost to Mother to provide health insurance for the minor child is $7.00/week. The [C]ourt orders Father to maintain health insurance on the child. Mother may continue to provide health insurance, but she is not receiving credit for it on the CSOW.
39. Father shall pay child support to Mother by Income Withholding Order through the INSCCU in the amount of $308.10 per week, commencing September 4, 2015.
42.
43. Mother has incurred attorney fees of $33,221.16. This includes a witness fee to Dr. Ehrmann of $1,800.00. In addition, Mother has incurred the costs of preparation of the Findings of Fact and Conclusions of Law. Father has incurred attorney fees of $26,930.19. The Court finds that [F]ather’s behavior during the pendency of these proceedings has necessitated the filing of the protective order as well as greatly increasing the costs of these proceedings. After a consideration of all the evidence, as well as the ability of the parties to pay the fees, the Court orders that Father pay $30,000 of [M]other’s attorney fees within ninety (90) days. Father shall pay the fees directly to [Mother’s counsel]. See
44. Father requested that a custody evaluation be performed by Dr. Ehrmann. Mother objected to the custody evaluation because she did not have adequate funds to pay for such an evaluation. The court orders that Father shall be responsible for the cost of the custody evaluation in the amount of $6,984.00.
[45]
[51] The protective order ... will remain in place for two (2) years. That Order will be modified to allow for communication regarding the child to take place (as noted above).
[52] The Parenting Coordinator may make recommendations relating to the need for the protective order to be modified.
Discussion and Decision
Section 1—The trial court did not abuse its discretion in ordering Father to pay most of Mother’s attorney’s fees plus the costs of the parenting coordinator and custody evaluation.
[6] “Indiana follows the ‘American rule,’ under which each party is ordinarily responsible for paying his or her own legal fees in the absence of a fee-shifting statutory or contractual provision,” H & G Ortho, Inc. v. Neodontics, Int’l, Inc., 823 N.E.2d 734, 737 (Ind. Ct. App. 2005). Pursuant to
[7] To the extent that Father challenges the trial court’s findings and conclusions on this and other issues, we will set them aside only if they are clearly erroneous, i.e., when the record contains no facts or inferences to support them. In re Riddle, 946 N.E.2d 61, 66 (Ind. Ct. App. 2011). “To determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made.” Campbell v. Campbell, 993 N.E.2d 205, 209 (Ind. Ct. App. 2013), trans. denied. “We must defer to the trial court’s ability to assess the credibility of witnesses and will not reweigh the evidence, and we must consider only the evidence most favorable to the judgment along with all reasonable inferences drawn in favor of the judgment.” Crider v. Crider, 15 N.E.3d 1042, 1053 (Ind. Ct. App. 2014), trans. denied. “It is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.” Campbell, 993 N.E.2d at 209. We apply a de novo standard of review to legal conclusions. Riddle, 946 N.E.2d at 66.
[8] Father first argues that the trial court’s findings do not support its conclusion that he has the ability to pay $30,000 of Mother’s attorney’s fees plus the nearly $27,000 in fees that he has incurred. He claims that the evidence shows that he “is already over $300,000 in debt and cannot pay his bills.” Appellant’s Br. at 10. The record indicates that over $278,000 of that debt consists of medical school loans, which are currently in forbearance and will not have to be repaid in
[9] For largely the same reasons, we find no merit in Father’s argument that the trial court abused its discretion in ordering him to pay the costs of the parenting coordinator and custody evaluation. It was Father’s misconduct that necessitated the appointment of the coordinator, and it was Father who requested a custody evaluation (which substantiated his misconduct) over Mother’s objection that she could not afford it.
Section 2—The trial court did not abuse its discretion in calculating Father’s child support obligation.
[10] Next, Father contends that the trial court improperly calculated his child support obligation. “A trial court’s calculation of child support is presumptively valid. We review decisions regarding support for an abuse of discretion,” Mitten, 44 N.E.3d at 699 (citation omitted).
[11] Father first complains about the trial court’s decision to credit Mother $265 for work-related child care expenses instead of granting his request to use pre-tax dollars through an employer-sponsored program to pay for A.T.’s daycare. He argues that if the trial court had granted his request, “he would be able to take advantage of a program that would free up money to help him pay off his debt and save money for the parties’ child. This is congruous with maintaining the parties’ and the child’s lifestyle versus wasting pre-tax benefits,” Appellant’s Br. at 14-15 (citations to record omitted). The trial court was not obligated to maximize Father’s pretax benefits.
[13] Father fails to acknowledge, however, that “parents have a common law duty to support their children.” Carpenter v. Carpenter, 891 N.E.2d 587, 593 (Ind. Ct. App. 2008). Thus, regardless of the legality of Mother’s agreement with her ex-husband, the duty to support her prior-born child remains. Moreover, Indiana Child Support Guideline 3C specifically states,
Where a party has a legal support duty for the child(ren) born prior to the child(ren) for whom support is being established, not by court order, an amount reasonably necessary for such support actually paid, or funds actually expended shall be deducted from weekly gross income to arrive at weekly adjusted income.
(Emphasis added.) Father does not challenge the reasonableness of the $95 credit, nor has he established that the credit resulted in anything other than a de minimis increase in his support obligation.4 And it is well settled that de minimis non curat lex (“the law does not redress trifles”). D & M Healthcare, Inc. v. Kernan, 800 N.E.2d 898, 901 (Ind. 2003). There was no abuse of discretion here.
Section 3—The trial court did not err in extending Mother’s protective order.
[14] Finally, Father raises several objections to the trial court’s extension of Mother’s protective order. First, he argues that the order must be reversed based on the doctrine of res judicata because Mother’s second petition for a protective order, which was granted, was duplicative of her first petition, which was denied. We disagree. Res judicata, which “serves to prevent repetitious litigation of disputes that are essentially the same,” applies only when “the former judgment was rendered on the merits,” among other things. Helms v. Rudicel, 986 N.E.2d 302, 308 (Ind. Ct. App. 2013), trans. denied. A judgment on the merits is one “delivered after the court has heard and evaluated the evidence and the parties’ substantive arguments.” Black’s Law Dictionary (10th ed. 2014). Mother’s first petition was denied without a hearing, and therefore res judicata is inapplicable.5
[15] Second, Father argues that “Mother did not meet the legal standard required to obtain” a protective order. Appellant’s Br. at 18. As we recently explained in Fox v. Bonam,
Our legislature has indicated that the Indiana Civil Protection Order Act shall be construed to promote the protection and safety of all victims of domestic
A person who has been a victim of domestic violence may file a petition for a protective order against a person who has committed stalking against the petitioner.
[16] In its order, the trial court made the following relevant findings:
[46] The Court finds that Father entered [M]other’s home without permission in the middle of the night, after drinking alcohol, and threatened and intimidated Mother.
[47] Father repeatedly threatened Mother without provocation in the doctor’s office that caused the staff to become concerned enough about her well-being that they contacted security. Father acknowledges that he repeatedly told her that her days were numbered.
[48] Father repeatedly texted Mother, sometimes 30-40 times per day, in a debasing, threatening, and demeaning manner.
[49] Father repeatedly attempted to intimidate [M]other at parenting exchanges.
[50] Mother reasonably believes herself to be intimidated, harassed and threatened by Father.
Appellant’s App. at 15.
[17] Father argues that his communications with Mother “were related to disagreements over parenting styles, and would not cause a reasonable person to be terrorized, frightened, intimidated or threatened. Presumably if such were the standard, all parents would be entitled to protective orders at times during the minority of the children.” Appellant’s Br. at
[18] Father also argues that the protective order “violates [his] constitutional right to free speech and fundamental right to raise his child as he sees fit.” Appellant’s Br. at 20. We disagree. The constitution would not protect Father in intimidating, harassing, or threatening Mother while “voicing his concerns with Mother over [A.T.’s] care.” Appellant’s Br. at 20. See Ind. Const. art. 1, § 9 (“No law shall be passed ... restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible”) (emphasis added); see also
[19] Affirmed.
NAJAM, J., and ROBB, J., concur.
Order
[1] Appellee, by counsel, filed an Appellee’s Motion to Publish.
[2] Having reviewed the matter, the Courts finds and orders as follows:
1. The Appellee’s Motion to Publish Memorandum Decision is granted.
2. This Court’s opinion heretofore handed down in this cause on May 5, 2016, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.
[3] Ordered 5/25/2016.
[4] NAJAM, ROBB, CRONE, JJ., concur.