Lorraine Mong (formerly Lucas), Appellant-Petitioner v. Jason Lucas, Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] Lorraine Mong, formerly Lorraine Lucas, (“Mother”) appeals the trial court's order addressing child custody, child support, and attorney fees. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] In May 2017, Mother filed a petition for dissolution of her marriage to Jason Lucas (“Father”). Mother and Father have two children, O.L., born in 2007, and A.L., born in 2013. In August 2017, the trial court issued a decree of dissolution of marriage which incorporated the parties’ settlement agreement. The settlement agreement provided: “It is in the best interest of the minor children that Mother shall have their care and custody. The parents acknowledge that the custodial parent shall have the ultimate authority to make decisions regarding the minor children.” Appellant's Appendix Volume II at 29. It provided, “Father shall have parenting time as follows: one to two (1-2) evenings per week as agreed upon between Mother and Father, with no overnights at this time” and “Mother and Father anticipate that parenting time will need to change when Father is able to obtain and maintain his own residence with appropriate provisions for the children.” Id. at 29-30.

[3] The settlement agreement further provided that Father's basic child support obligation was $267 per week. It provided that Father would pay 80% and Mother would pay 20% of the costs of the children's agreed upon extracurricular activities including baseball, that he would maintain health insurance policies covering the children, and that Mother was responsible for the first $1,170 of unreimbursed health expenses in a calendar year and Father would be responsible for 81% and Mother would be responsible for 19% of the health expenses in excess of that amount. The agreement also stated that Father was entitled to claim A.L. and Mother was entitled to claim O.L. as dependents for tax purposes.¹

[4] On December 6, 2022, Mother filed a petition for rule to show cause alleging that Father had an arrearage of $1,310.15 in child support, failed to pay for 80% of the cost of extracurricular activities, failed to maintain health insurance, and failed to reimburse her for out-of-pocket health expenses. Mother further filed a petition to modify child support alleging that changes in the parties’ income and the cost of insurance made the current order unreasonable. Mother also filed a motion for in camera interview of O.L. Father filed a motion to modify custody alleging that the parties’ parenting time schedule had changed and Mother refused to reduce their schedule to a written agreement. The court held a hearing on the pending motions over several days and conducted an in camera interview.²

[5] On July 31, 2024, the trial court issued an Order on Contempt and Modification of Decree. The court found the evidence showed a substantial and continuing change in the parties’ circumstances that warranted a modification of the settlement agreement, found the parties were able to cooperate to advance the children's well-being, and ordered joint legal custody. It found that, by agreement of the parties, Father had exercised parenting time well in excess of what was provided by the prior order, Father and Mother had regularly exercised equal parenting time, Mother had recently limited Father's parenting time and requested that the court modify Father's parenting time to be consistent with the Indiana Parenting Time Guidelines (“IPTG”) and “[t]his was done without good cause and in bad faith,” and “[t]he court, after in camera interview conclude[d] [Mother's] actions contributed to the now damaged relationship [Father] has with at least [O.L.].” Id. at 15. The court stated that Father requested joint physical custody and ordered the parties to share joint physical custody and “[t]he parents shall alternate parenting time on a week-on/week-off basis exchanging the children Mondays at school.” Id.

[6] The court further found that Father's weekly gross income was $1,461.20, Mother's weekly gross income was $1,033.93, Mother paid $98.25 per week for childcare, and Father paid $66.69 per week for the children's health insurance. The court found that Father's child support obligation “under the court's prepared CSOW reflecting the orders above is $229.00.” Id. at 16-17. The court ordered that the parties split unreimbursed health expenses with Father paying 59% and Mother paying 41% and split agreed-upon extracurricular expenses with Father and Mother each paying 50%. The court found that Father owed Mother $2,750.84 for extracurricular activity costs and $714.68 in healthcare expenses. The court further found:

C. The Agreement is very specific regarding other issues raised by the parties, including but not limited to the payment of attorney's fees. This agreement was made without the benefit of Father having counsel, and is extraordinarily one sided in favor of [Mother].

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26. That there was extensive testimony taken regarding the contempt issues raised by Mother regarding Father's non-payment of extra-curricular expenses, and Father's non-payment of uninsured medical payments. This was in the context of presenting various other allegedly contemptuous matters, that were presented in litigious and hostile posture, that the court concludes made the entire reimbursement issue confusing and harder to resolve.

27. That the Court does not find that Father's non-payment of uninsured medical expenses was a willful violation of the parties’ order, and similarly the Court does not find that Father's nonpayment of the extra-curricular expenses was a willful violation of the parties’ order. The root cause of this appears to be communication issues between both parties, and the litigious posture taken by [Mother]. For example, [she] has demanded reimbursement expenditures including but not limited to: discretionary international travel costs, car insurance, and past child care costs that are subsumed in the weekly support order. None of this is a reimbursement called for by the agreed order. Similarly as to the Tax Exemption Mother has demanded [Father] refile his prior taxes and also forfeit his right to claim for a future year. Mother's posture and demands are unreasonable.

28. The parties’ marital settlement agreement provided that Father agreed to pay all Mother's attorney fees related to his anticipated change in residence. The court finds the Modification litigation in this case was related to Mother co-operatively parenting for a period of time, allowing parenting time to increase in a reasonable manner based on the circumstances, and pulling that away when [Father] sought to formalize it. Again, unreasonable.

29. The tone and tenor and partial frivolity of this litigation calls for [Mother] to be responsible for part of [Father's] fees, as opposed to the original agreement.

30. Mother's request for payment of the son's international trip is DENIED.

31. Mother's request for the son's car insurance is DENIED.

32. Despite complaint, Mother has not demonstrated any harm for periods the children may not have been covered by health insurance.

33. Despite complaint, Mother has not demonstrated any harm for periods the children may not have been covered by life insurance on [Father] for their benefit.

34. Despite complaint, Mother has not demonstrated any harm for [Father's] alleged failure to comply with relocation notices.

35. As to Mother's request for findings of contempt for child financial issues, Father has been determined to be almost 100% compliant (and on an income withholding order) as to weekly support. Likewise, given [Father] is overall ~95% compliant in light of the determination of the other contested reimbursement issues, [h]er motion for contempt on these issues is denied.

36. Mother's asserting the issues noted above needlessly protracted this litigation and partially prevented a simple resolution of the disputed issues.

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38. The parties’ contractual agreement regarding attorney's fees and its supposed mandate of his payment of her fees has been addressed above and is denied. Pursuant to Ind Code 31-15-10-1, the court finds Mother should be partially responsible for Father's attorney's fees in litigating the parenting time and custody fees, in which Father prevailed. Father has also defended frivolous requests.

39. Father has incurred expenses for attorney's fees in the amount of at least $27,000.00. Pursuant to Ind Code 31-15-10-1 Father is awarded $12,000.00 attorney's fees from Mother ․

Id. at 18-20.

Discussion

[7] Mother asserts that the trial court was biased and erred in several respects. We determine whether the evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions thereon. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). Findings are clearly erroneous when the record contains no facts to support them directly or by inference. Id.

A. Claim of Bias

[8] Mother argues the trial judge “used terms such as ‘litigious’, ‘hostile’ and ‘frivolous’ in regards to [her] claims, yet validated [her] claims in ordering Father to reimburse [her] for expenses” and “the judge entered his Order with criticisms of [her] legal positions and criticizing the parties[’] Agreement despite the court's prior approval of that same Agreement.” Appellant's Brief at 21. Father argues that “Mother can only point to the trial court's adverse rulings and findings against her” and the court's “adverse rulings and findings against Mother are well founded.” Appellee's Brief at 15.

[9] The law presumes that a judge is unbiased and unprejudiced. In re Edwards, 694 N.E.2d 701, 711 (Ind. 1998). In order to overcome that presumption, the appellant must demonstrate actual personal bias. In re Estate of Wheat, 858 N.E.2d 175, 183 (Ind. Ct. App. 2006). Generally, an argument or issue raised for the first time on appeal is waived for appellate review. First Chi. Ins. Co. v. Collins, 141 N.E.3d 54, 61 (Ind. Ct. App. 2020). Mother does not point to the record to show that she raised the issue of bias before the trial court, and she has waived the claim. Waiver aside, we cannot say that Mother has demonstrated the trial judge was biased. While the court characterized some of Mother's claims as frivolous and found that Father did not willfully violate a court order, Mother does not point to the transcript to show that the judge made remarks evidencing actual personal bias, and the record reveals that the court issued an order after admitting extensive testimony and documentary evidence related to the multiple issues presented by the parties and carefully weighed the evidence. Mother has not overcome the presumption that the trial judge was unbiased.

B. Calculation of Child Support

[10] Mother argues that the trial court did not include a child support obligation worksheet with its order or adopt the amounts proposed on the worksheets submitted at the hearing. Father argues the Ind. Child Support Guidelines did not require the court to attach a worksheet to its order.

[11] This Court has held:

In our review, we must start with the observation that our trial courts are required to make support orders in compliance with the guidelines and to spell out the reasons for any support orders which deviate from the guideline results. We cannot review a support order to determine if it complies with the guidelines unless the order reveals the basis for the amount awarded. Such revelation could be accomplished either by specific findings or by incorporation of a proper worksheet.

Carter v. Dayhuff, 829 N.E.2d 560, 569 (Ind. Ct. App. 2005) (citations omitted).

[12] The trial court found that Father's weekly gross income was $1,461.20, Mother's weekly gross income was $1,033.93, Mother paid $98.25 per week for childcare, and Father paid $66.69 per week for the children's health insurance.³ Father submitted two child support obligation worksheets, both of which utilized these weekly income and expense amounts. The first worksheet submitted by Father included a parenting time credit for Father of $165.11 based on Father exercising 181-183 overnights and recommended that Father pay child support of $118 per week. The second worksheet submitted by Father included a parenting time credit for Father of $68.54 based on Father exercising 96-100 overnights and recommended that Father pay child support of $214 per week.⁴ The trial court ordered that Father pay child support of $229 per week. The court did not issue specific findings regarding any parenting time credit, the number of overnights on which a parenting time credit calculation would be based, or its calculation in which it determined Father's weekly support obligation of $229. We remand for entry of an amended order which incorporates a child support obligation worksheet or specific findings revealing the basis for the amount awarded. See Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 728 (Ind. Ct. App. 2009) (noting trial court's findings did not explain how it arrived at amounts it awarded and remanding for more specific findings or proper worksheet).

C. Extracurricular Activities

[13] Mother argues, “[i]f the parties[’] pro rata shares are in fact 59% and 41%, pursuant to the Child Support Guidelines, the parties should share the agreed upon extracurricular activities pursuant to those percentages.” Appellant's Brief at 16. Father argues there is ample evidence to support the court's decision to order the parties to split the extracurricular expenses evenly.

[14] Ind. Child Support Guideline 8 provides in part:

Other Extraordinary Expenses.

The economic data used in developing the Child Support Guideline Schedules do not include components related to those expenses of an “optional” nature such as costs related to summer camp, soccer leagues, scouting and the like. When both parents agree that the child(ren) may participate in optional activities, the parents should pay their pro rata share of these expenses from line 2 of the Child Support Obligation Worksheet. In the absence of an agreement relating to such expenses, assigning responsibility for the costs should take into account factors such as each parent's ability to pay, which parent is encouraging the activity, whether the child(ren) has/have historically participated in the activity, and the reasons a parent encourages or opposes participation in the activity. If the parents or the court determine that the child(ren) may participate in optional activities, the method of sharing the expenses shall be set forth in the entry.

[15] The trial court found that Father's weekly income was $1,461.20 and Mother's weekly income was $1,033.93. Father testified that he and Mother reached an agreement in 2021 to split the expenses for baseball of $1,000 equally. He indicated that, the next year, those costs increased to $2,248.55. He indicated that, moving forward, he could not be responsible for 80% of baseball expenses, especially if the expenses were going to be that much each year. He indicated that, even though there was an agreement to split the baseball expenses equally in 2021, he would agree to pay 80% of the baseball expenses for 2021 and 2022 and through the date the modification request was filed because that was ordered in the settlement agreement. Father requested that, moving forward, the expenses be split 50/50. He also indicated that he and Mother had reached an agreement to split the cost of a soccer camp equally but that he was willing to pay 80% of that expense. While the record arguably supports the trial court's order that the parties share the cost of the children's agreed-upon optional extracurricular activities equally, given that we are remanding for entry of an amended child support order, we include this issue on remand for the trial court's consideration per Ind. Child Support Guideline 8.

D. Custody

[16] Mother argues that Father's petition did not request a modification of physical custody and that the court did not find that it was in the children's best interests for the parties to share custody. Father argues that Mother did not object to the issues of physical custody and parenting time being heard and the court did not abuse its discretion in determining custody.

[17] Generally, Ind. Code § 31-17-2-21 provides a court may not modify a child custody order unless modification is in the child's best interests and there is a substantial change in one or more of the factors under Ind. Code § 31-17-2-8. 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.” Hecht v. Hecht, 142 N.E.3d 1022, 1028 (Ind. Ct. App. 2011) (citation omitted). This is because it is the trial court that observes the parties’ conduct and demeanor and hears their testimony firsthand. Id. at 1029. We will not reweigh the evidence or judge the credibility of the witnesses. Id. “[I]t 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.” Id. (citing Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). It is not impossible to reverse a trial court's decision regarding child custody on appeal, but given our deferential standard of review, it is relatively rare. Id. To the extent Mother does not challenge the trial court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied.

[18] Any issue not set out in the pleadings may be tried by the express or implied consent of the parties pursuant to Ind. Trial Rule 15(B). In re V.C., 867 N.E.2d 167, 178 (Ind. Ct. App. 2007); Ind. Trial Rule 15(B) (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”). Where the evidentiary hearing ends without objection to any new issue, the evidence actually presented controls, and consequently neither pleadings nor theories proposed by the parties frustrate the trier of fact from finding the facts that a preponderance of the evidence permits. In re V.C., 867 N.E.2d at 178.

[19] In his petition to modify custody, Father alleged there was a substantial and continuing change in circumstances “such that the current custody and parenting time arrangements as set forth in the parties’ Agreement of Property Settlement and for Child Custody and Support are no longer in the best interests of the minor children.” Appellant's Appendix Volume II at 51-52. At the start of the hearing on the pending motions, the court indicated “[w]e've got custody, support, parenting time, and all financials are all at issue,” and Mother's counsel replied “[c]ontempt on the mediated settlement agreement, Your Honor ․” Transcript Volume II at 5. The court heard evidence related to custody and parenting time and conducted an in camera interview. In his summary of requested relief, Father requested an order that the parties share joint physical custody of the children and alternate parenting time on a week-on/week-off basis. Mother does not point to the record to show that she objected to the issues of physical custody and parenting time being heard, and we find that those issues were tried with her consent. Further, while the court did not use the phrase “best interests,” it heard extensive testimony, conducted an in camera interview, and found that, by agreement of the parties, Father had exercised parenting time well in excess of that provided by the prior order and regularly exercised an equal amount of parenting time as Mother, Mother had recently limited Father's parenting time without good cause and in bad faith, and Mother's actions contributed to a damaged relationship between Father and O.L. We find reversal is unwarranted on this basis. See Hecht, 142 N.E.3d at 1032 n.5 (affirming trial court's custody determination in light of findings and evidence although it did not use precise words “best interests of the child”).

E. Attorney Fees

[20] Mother argues that Father failed to comply with the settlement agreement and that the court abused its discretion in failing “to provide any sanction for Father's repeated and multiple violations of the court's order.” Appellant's Brief at 19. She argues “[t]he court disagreed with some of [her] requests for reimbursements, but that should not lead to [her] being found to be litigious or hostile.” Id. at 21. Father argues the court made specific findings regarding Mother's frivolous and unreasonable requests and arguments.

[21] In dissolution proceedings, the trial court may order a party to pay a reasonable amount for the other's attorney fees. Luttrell v. Luttrell, 994 N.E.2d 298, 305 (Ind. Ct. App. 2013) (citing Ind. Code § 31-15-10-1), trans. denied. The trial court has broad discretion in awarding attorney fees. Id. The court may consider the resources of the parties, their relative earning abilities, and other factors which bear on the reasonableness of the award. Id. The court may also consider any misconduct that causes a party to incur additional fees. Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App. 2012), trans. denied.

[22] The settlement agreement provided that, “[i]n the event a breach occurs as to the allocation of any liabilities or obligations of either party to this Agreement, the breaching party shall be obligated to cure said breach, and shall be responsible for all costs and expenses incurred by the innocent party, including but not limited to reasonable attorney fees.” Appellant's Appendix Volume II at 36. While the court found that Father owed $2,750.84 for extracurricular activity costs and $714.68 for healthcare expenses, it found that Father did not willfully violate the court's order, the nonpayment was caused by communication issues between the parties and the litigious posture of Mother, the allegations were presented in a way that made the entire reimbursement issue confusing, and Mother made unreasonable demands including for reimbursement of costs already included in the basic child support amount ordered. The court also found Father was “almost 100% compliant ․ as to weekly support” and was “overall ~95% compliant in light of the determination of the other contested reimbursement issues.” Id. at 19. Father testified that he did not willfully violate the court's order, that his nonpayment of extracurricular expenses was due to agreements he had reached with Mother to split certain costs equally, and that Mother had not previously provided receipts to show that she had paid unreimbursed medical expenses exceeding her threshold. The court found that Mother should be responsible for part of Father's attorney fees and ordered her to pay $12,000 toward Father's total attorney fees of at least $27,000. In light of the record and the court's findings, we cannot say the court abused its discretion.

[23] For the foregoing reasons, we remand for an amended order consistent with this opinion.

[24] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   The provision regarding tax exemptions further stated:Father's ability to obtain said exemption is conditioned upon Father being current in his child support obligations (i.e.: Father has paid at least ninety-five percent (95%) of the parent's child support for the calendar year for which the parent is ordered to claim the child as dependent by January 31st of the following year), as well as all of any uninsured medical expenses and extracurricular activity costs as of December 31st of each year, and never having been more than thirty (30) days in arrears in support throughout the entire calendar year.Appellant's Appendix Volume II at 32.

2.   The chronological case summary indicates the court conducted an in camera interview but does not refer to either child by name.

3.   The court admitted earnings statements of Father and Mother, a schedule of Father's insurance premium costs, and Mother's testimony regarding her cost of childcare.

4.   In reference to the second worksheet, when asked “this is essentially that same child support worksheet, but we adjusted the parenting time credit that you would receive based on the historical number of overnights that you have exercised this past year, is that right,” Father answered “Yes.” Transcript Volume II at 146.

Brown, Judge.

Chief Judge Altice and Judge Tavitas concur. Altice, C.J., and Tavitas, J., concur.