IN RE: the Marriage of Julie (Howlett) Washburn (2025)

MEMORANDUM DECISION

[1] Julie (Howlett) Washburn (“Mother”) appeals following the trial court's denial of the motion to correct error that Mother filed after the trial court granted the motion to modify custody filed by Marc Howlett (“Father”). Mother raises three issues, which we revise and restate as whether the trial court abused its discretion when it denied her motion to correct error because:

1. the trial court abused its discretion by denying Mother's motion to continue a contested hearing after allowing Mother's counsel to withdraw four days prior to the hearing;

2. the trial court abused its discretion when it modified custody from joint custody to Father having sole custody; and

3. the trial court abused its discretion when it calculated child support by imputing income to Mother and by crediting Father for insurance premiums.

We affirm.

Facts and Procedural History

[2] Mother and Father divorced on November 12, 2019. The divorce decree provided that Mother and Father were to share joint legal and physical custody of C.H., age 7, and J.H., age 11 (collectively, “Children”). The divorce decree stated that “[e]ach parent shall be entitled to have complete access to the Children's educational, medical, psychological, school, religious and other pertinent records.” (App. Vol. 2 at 20.) In addition, the decree provided that “[t]he parents will openly discuss, communicate concerning and attempt to agree upon major decisions involving the health, education, religion and welfare of the Children.” (Id.)

[3] Both Father and Mother remarried following the divorce. After Father enrolled J.H. in soccer and agreed to coach the team, Mother cancelled J.H.’s soccer enrollment and enrolled J.H. in gymnastics without consulting Father. Mother also enrolled the Children in other extracurricular activities without notifying Father. In addition, she contacted the principal at J.H.’s school and changed J.H.’s assigned teacher without notifying Father. Mother refused to work with Father to arrange for him to make up for missed parenting time. She changed Father's access to Children's medical records to “billing only on multiple occasions.” (Tr. Vol. 2 at 62.) This resulted in Father having to repeatedly bring a copy of the divorce decree into the Children's doctor's office so that his full access could be restored. Mother also angrily confronted Father and Father's Wife (“Stepmother”) on two occasions that resulted in the police being called.

[4] On June 5, 2023, Mother filed a verified petition for modification of custody, parenting time, and child support. Mother also filed a motion for the appointment of a Guardian Ad Litem (“GAL”). Father did not object to the appointment of a GAL, and the trial court appointed a GAL. On October 23, 2023, Father filed his verified motion to modify custody, parenting time, and child support.

[5] The GAL filed her report on October 24, 2023. She reported an “abnormally high” level of animosity between Mother and Stepmother without a clear precipitating event. (App. Vol. 2 at 80.) The GAL recommended that “Father should be primary physical custodian, with Mother to have parenting time pursuant to the Indiana Parenting Time Guidelines[.]” (Id. at 81.) The GAL also recommended Mother and Father “should share joint legal custody, with the Father to have final decision making authority in the event there is no agreement after a full discussion between the parties, as to major decisions including medical care, educational issues, religious upbringing and extracurricular activities.” (Id. at 81-82.) In addition, the GAL recommended that Mother, Father, and the Children attend counseling.

[6] On January 30, 2024, the trial court scheduled an evidentiary hearing regarding the parties’ competing motions to modify custody, parenting time, and child support to occur on June 18, 2024 (“June 18 hearing”). On March 14, 2024, Father filed a verified information for contempt alleging Mother violated the terms of the divorce decree by blocking Father's access to Children's medical records. On May 28, 2024, Mother filed a motion to compel alleging that Father had failed to respond to supplemental interrogatories and requests for production that Mother had served on him. Mother also filed a motion to continue the June 18 hearing because she did not have adequate time to prepare for the hearing without Father's responses to her supplemental discovery requests. On May 29, 2024, Father filed a notice that he had responded to the supplemental discovery requests. He also filed a response to Mother's motion to continue. Father asserted Mother still had “ample time to prepare” for the June 18 hearing and he believed the hearing should “occur prior to the start of the 2024-25 school year[.]” (Id. at 144.) Father argued that continuing the hearing would do “nothing more than permit the Mother's obstreperous behavior to continue.” (Id.) On June 4, 2024, the trial court issued an order denying Mother's motion to compel and her motion to continue the June 18 hearing.

[7] On June 5, 2024, Mother's attorney (“Attorney I”) sent Mother an email giving her a ten-day notice of counsel's intent to withdraw. Attorney I's email notifying Mother of her intent to withdraw was a reply to an email Mother had sent to Attorney I earlier that day. Attorney I wrote in her email to Mother: “The email below comes across as putting me on notice that you are seeking other legal counsel which is fine, but puts me in an uncomfortable position of having to give you a 10 day notice of my intent to withdraw from representing you[.]” (Id. at 149-50.) Attorney I filed a motion for leave to withdraw on June 14, 2024, and the trial court granted the motion.

[8] Also on June 14, 2024, another attorney (“Attorney II”) filed an appearance on Mother's behalf for the limited purpose of filing a motion to continue the June 18 hearing and the motion to continue that hearing. Attorney II asserted in the motion to continue that Mother had only recently retained him to represent her and he did not have sufficient time to adequately prepare to represent Mother at the June 18 hearing. The trial court denied the motion to continue.

[9] Mother then represented herself at the June 18 hearing. She again asked for more time to hire counsel, but the trial court denied her request. Father testified that while Mother reported a low income in the years following their divorce, she worked for a brokerage services business owned by her current husband during that period. Father asked the trial court to impute a higher income to Mother because Mother's income in 2019 was $120,000. He also stated that Mother's current lifestyle was not consistent with her reported income because she drove a Range Rover and lived in a house that had been purchased for around $600,000. Regarding the issue of Children's legal custody, the GAL testified her opinion was “that mom is not willing to work with dad, and so that's why I think he needs to have, at least the final say.” (Tr. Vol. 2 at 105-06.) At the conclusion of the hearing, the trial court invited the parties to submit proposed orders.

[10] On August 13, 2024, the trial court entered an order ruling on the motions that were before the court at the June 18 hearing. The trial court found:

7. Mother has been employed by her current husband/business owner, who is a financial advisor, for approximately eight (8) years. Mother has a history of making around $120,000 per year. The Mother, through her discovery responses, indicated that she previously made $90,000 in 2021, no income in 2022, and $25,000 in 2023, and anticipates making $50,000 in 2024. The Court believes it would be impractical, if not inappropriate, to put Mother's income at $25,000 annually as she requests.

8. The Court notes that the Mother lives in a house in excess of $600,000, as well as drives a newer Range Rover automobile. The Court finds that the Mother is not living the lifestyle of someone making $25,000 per year. The Court determines Mother's income shall be entered at $120,000 per year.

* * * * *

11. The Mother has unilaterally been making legal decisions for the parties’ minor children. The Mother switched J.H.’s teacher, has taken the [sic] J.H. to a medical appointment, which was represented to be for a hand injury, and turned out to be Mother's attempt to get the child to make statements regarding the stepmother. Mother has also repeatedly removed the Father's access from both children's medical records. Father has repeatedly made the Mother aware of this issue, which she has failed to rectify.

* * * * *

16. The Court having considered the factors [related to child custody listed in Indiana Code section 31-17-2-8], and the Court also having considered the Guardian Ad Litem's Report filed with the Court on February 13, 2024 (entered into evidence as Father's Exhibit “1” without objection from the Mother), and the Court having heard and considered the testimony of the GAL on the date of said hearing, as well as testimony of the parties and witnesses, considered all of the evidence, now grants Father's Motion to Modify Custody, Parenting Time and Child Support.

17. The Court orders that the Father shall have sole legal custody of the minor children. The Father shall have sole decision making for medical, educational, religious, and extracurricular activities. The Court further orders that the Father shall keep the Mother up to date on all of the children's extracurricular, educational, and religious activities, and medical appointments and treatment. Each party shall have unfettered access to the minor children's religious, medical, and educational records.

* * * * *

31. The Court orders that the children may continue to be covered by the Father's wife's insurance plan. The evidence before the Court is that this costs around $14 per week and the same has been accounted for on the attached child support worksheet.

(App. Vol. 3 at 231-33 & 236-37.) The trial court ordered Mother and Father to retain joint physical custody of Children with each parent having custody of Children on alternating weeks. The trial court also ordered Mother to make weekly payments to Father of $15 in child support. In addition, the trial court found Mother in contempt and sentenced her to a term of seven days in the Warrick County Jail, but the trial court suspended execution of that sentence.

[11] Mother hired new counsel (“Attorney III”) and filed a motion to correct error on September 12, 2024. Mother asserted the trial court's denial of her motion to continue violated her right to due process. Mother asked the trial court to vacate its prior order and hold a new hearing with Mother represented by counsel. Father filed a response to Mother's motion to correct error on September 27, 2024. Father asserted that “Mother points to no articulable facts that demonstrate what or how she was prejudiced. Mother does not point to any particular reason that she believes a different result would have been obtained had she been with counsel.” (Id. at 186.) Father noted “Mother was provided with the opportunity to present evidence and some leeway by the Court in the presentation of her evidence.” (Id.) Father also asserted that the trial court did not err in imputing an income of $120,000 a year to Mother despite her low reported income because Mother was voluntarily underemployed. In addition, Father argued the trial court's decision to award him sole legal custody was appropriate given Mother's past attempts to limit his access to Children's medical records and the GAL's concerns about Mother making decisions for Children without consulting Father. The trial court denied Mother's motion to correct error.

Discussion and Decision

[12] Mother appeals the trial court's order following the June 18 hearing and its subsequent order denying her motion to correct error. We review a trial court's ruling on a motion to correct error for an abuse of discretion. Poiry v. City of New Haven, 113 N.E.3d 1236, 1239 (Ind. Ct. App. 2018). “An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law.” Id. However, deciding whether a trial court abused its discretion in denying a motion to correct error often requires us to evaluate the propriety of the underlying determinations. See In re Guardianship of M.N.S., 23 N.E.3d 759, 765-66 (Ind. Ct. App. 2014) (reviewing trial court's order on petition to terminate guardianship over child after trial court denied guardian's motion to correct error).

1. Denial of Motion to Continue

[13] Mother contends the trial court abused its discretion when it held the June 18 hearing despite the withdrawal of Attorney I four days earlier. When Mother filed her motion to continue, Trial Rule 53.5 governed such motions,¹ and it stated: “Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence.” “We review a trial court's ruling on a motion to continue a trial date for an abuse of discretion, with a strong presumption that the trial court properly exercised its discretion.” In re B.H., 44 N.E.3d 745, 748 (Ind. Ct. App. 2015), trans. denied. “A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect of the facts or the reasonable and probable deductions which may be drawn therefrom.” F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012). We will reverse the denial of a motion to continue only if the moving party can show good cause for why the continuance should have been granted, and “[n]o abuse of discretion will be found when the moving party has not shown that [party] was prejudiced by the denial.” Id. “The party seeking a continuance must show that he or she is free from fault.” In re B.H., 44 N.E.3d at 748.

[14] Mother argues the trial court should have continued the June 18 hearing “so that Mother could appear with new counsel when her original trial counsel's withdraw[al] occurred at a critical stage of the proceeding in a complex custody and parenting time case and Mother was prejudiced as a result of the denial of her motion to continue.” (Appellant's Br. at 14.) However, the trial court scheduled the June 18 hearing months in advance, and while Mother's first motion to continue the June 18 hearing was premised on Father's failure to respond to supplemental discovery, Father responded to the discovery shortly thereafter. This occurred approximately three weeks before the hearing. Mother nonetheless chose to terminate Attorney I's representation of her thirteen days before that hearing without securing new counsel. Mother did not secure new counsel, Attorney II, until four days before the scheduled hearing, and by that time, Attorney II would not have had sufficient time to prepare for the hearing. We agree with Father that Mother's “conduct could lead to the conclusion that her actions were motivated by attempting to delay the proceedings,” (Appellee's Br. at 13), and a party who engages in “dilatory tactics” that are “designed to delay coming to trial” is not entitled to a continuance. J.P. v. G.M., 14 N.E.3d 786, 790 (Ind. Ct. App. 2014).

[15] Mother notes Attorney I did not wait the full ten days required by Trial Rule 3.1 ² to file her motion for leave to withdraw after notifying Mother of her intent, but Mother does not explain how the one-day-early filing prejudiced her. Mother questioned witnesses, presented several exhibits, and objected during Father's presentation of evidence. Therefore, Mother has not demonstrated the trial court abused its discretion when it denied Mother's motion to continue. See, e.g., Matter of N.K., 249 N.E.3d 607, 616 (Ind. Ct. App. 2024) (holding trial court did not abuse discretion by denying mother's motion to continue a child custody modification hearing when Mother had a history of attorneys withdrawing close to scheduled hearings and Mother was able to represent herself at the hearing).

2. Child Custody

[16] Mother also challenges the trial court's order following the June 18 hearing. Mother argues the trial court erred by awarding sole legal custody of Children to Father. “We review the modification of child custody for an abuse of the trial court's discretion, ‘with a preference for granting latitude and deference to our trial judges in family law matters.’ ” Matter of J.M., 246 N.E.3d 303, 307 (Ind. Ct. App. 2024) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). “A trial court abuses its discretion if its decision is ‘clearly against the logic and effect of the facts and circumstances before it or where the trial court errs on a matter of law.’ ” Reel v. Reel, 231 N.E.3d 915, 923 (Ind. Ct. App. 2024) (quoting Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013)).

[17] The trial court's entry of findings of fact and conclusions of law also impacts our standard of review. Ashworth v. Ehrgott, 982 N.E.2d 366, 372 (Ind. Ct. App. 2013). We “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. T.R. 52(A). “A finding is clearly erroneous if there are no facts in the record to support it, either directly or by inference.” Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013). “A judgment is clearly erroneous when there is no evidence supporting the findings, when the findings fail to support the judgment, or when the trial court ‘applies the wrong legal standard to properly found facts.’ ” In re Paternity of M.R.A., 41 N.E.3d 287, 293 (Ind. Ct. App. 2015) (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009)).

[18] When, as here, the trial court enters findings of fact and conclusions of law without a written request made prior to the admission of evidence, the findings and conclusions are considered sua sponte.³ Erie Ins. Exch. v. Sams, 20 N.E.3d 182, 187 (Ind. Ct. App. 2014), trans. denied. “When a trial court enters specific findings sua sponte, the specific findings control our review and judgment only as to the issues those specific findings cover. Where there are no specific findings, a general judgment standard applies, and we may affirm on any legal theory supported by the evidence.” Id. (internal citation omitted).

[19] Mother asserts “the trial court abused its discretion [by] modifying the joint legal custody of the parties in the absence of any evidence presented regarding the parents’ inability to communicate regarding the areas covered under the statutory language of joint legal custody.” (Appellant's Br. at 21.) Indiana Code section 31-17-2-13 provides that a trial court may award joint legal custody of a child if the trial court finds such an award to be in the child's best interest. Indiana Code section 31-17-2-15 states:

In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primacy, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:

(1) the fitness and suitability of each of the persons awarded joint custody;

(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare;

(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;

(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;

(5) whether the persons awarded joint custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so; and

(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

The second factor, “whether the parents are willing and able to cooperate in advancing the child's welfare, is of particular importance in making legal custody determinations.” Milcherska v. Hoerstman, 56 N.E.3d 634, 641 (Ind. Ct. App. 2016). “Where ‘the parties have made child-rearing a battleground, then joint custody is not appropriate.’ ” Id. at 642 (quoting Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995), trans. denied). “Indeed, to award joint legal custody to individually capable parents who cannot work together ‘is tantamount to the proverbial folly of cutting the baby in half in order to effect a fair distribution of the child to competing parents.’ ” Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct. App. 2008) (quoting Aylward v. Aylward, 592 N.E.2d 1247, 1252 (Ind. Ct. App. 1992)). Father's testimony and the GAL report support the trial court's finding that “Mother has unilaterally been making legal decisions for the parties’ minor children.” (App. Vol. 3 at 232.) Father explained that Mother denied him access to Children's full medical records. She also changed J.H.’s teacher without informing Father first. Father's testimony and the GAL report listed multiple instances in which Mother enrolled or de-enrolled the Children in extracurricular activities without consulting Father. In addition, the GAL's testimony that Mother is unwilling to work with Father and Mother's actions of twice angrily confronting Father and Stepmother support the trial court's finding that joint legal custody is not appropriate. Consequently, we cannot say the trial court clearly erred by modifying the divorce decree to award Father sole legal custody over Children. See, e.g., J.W. v. M.W., 77 N.E.3d 1274, 1279 (Ind. Ct. App. 2017) (holding father's lack of cooperation with mother supported trial court's decision to modify custody arrangement to give mother sole legal custody).

3. Child Support

[20] Mother also contends the trial court erred in its child support calculation by imputing an annual income of $120,000 to her and including Stepmother's health insurance premium payments for Children as contributions from Father. We presume a trial court's calculation of child support is valid and will affirm the trial court's calculation unless it constitutes an abuse of discretion. Ashworth, 982 N.E.2d at 372. Because the trial court entered findings of fact and conclusions of law related to the issue of child support, we review the trial court's judgment and findings for clear error. Douglas v. Spicer, 8 N.E.3d 712, 714-15 (Ind. Ct. App. 2014).

[21] The Indiana Child Support Guidelines allow the trial court to impute income to a parent when calculating child support if the parent is voluntarily unemployed or underemployed. Walters v. Walters, 186 N.E.3d 1186, 1190 (Ind. Ct. App. 2022). The Indiana Child Support Guidelines state:

If a court finds a parent is voluntarily unemployed or underemployed without just cause, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor's employment and earnings history, occupational qualifications, educational attainment, literacy, age, health, criminal record or other employment barriers, prevailing job opportunities, and earnings levels in the community.

Child Supp. G. 3(A)(3). “One purpose of potential income is to discourage a parent from taking a lower paying job to avoid the payment of significant support.” In re Paternity of Pickett, 44 N.E.3d 756, 766 (Ind. Ct. App. 2015).

[22] Mother asserts she earned $11,250 in 2021, no income in 2022, $25,000 in 2023, and that she anticipated earning $50,000 in 2024. However, the trial court found Mother purportedly earned these incomes while employed by her current husband and her work history indicates she can earn much more. Mother's income in 2020 was $92,000. Father testified that “in 2019 when we were divorced, she was making a hundred and twenty thousand dollars.” (Tr. Vol. 2 at 38.) He also testified that Mother's current standard of living was not sustainable based on the income Mother attributed to herself. Father's testimony about Mother's income during the marriage thus supported the trial court's imputation of $120,000 per year to Mother. See, e.g., In re Marriage of Turner v. Turner, 785 N.E.2d 259, 266 (Ind. Ct. App. 2003) (holding trial court did not err in finding father was voluntarily underemployed and imputing income to him based on his work history). Mother's argument that the trial court erroneously credited Father's testimony is an invitation to reweigh the evidence and judge the credibility of the witnesses, which we will not do. C.f. In re Paternity of Jo. J., 992 N.E.2d 760, 771 (Ind. Ct. App. 2013) (rejecting father's argument that the trial court erred by not imputing additional income to mother as “merely a request to reweigh the evidence, which we may not do”). Thus, we affirm the trial court's imputation of $120,000 in annual income to Mother.

[23] Mother also contends the trial court erred in its calculation of child support by crediting Father for the cost of Children's health insurance when the Children are insured under Stepmother's plan. However, because the Children's health insurance premiums are a shared expense covered by Father's household, the trial court did not err in crediting Father for that cost. See Child Supp. G. 3(G)(3) (“The parent who pays the weekly premium cost for the child(ren)’s health insurance should receive a credit towards his or her child support obligation in most circumstances.”). Therefore, we affirm the trial court's child support calculation.

Conclusion

[24] The trial court did not abuse its discretion when it denied Mother's motion to continue after Mother chose to terminate her counsel shortly before an evidentiary hearing that the trial court had scheduled months in advance. Nor did the trial court err when it modified custody or calculated child support. Accordingly, Mother has not demonstrated the trial court abused its discretion when it denied her motion to correct error. We accordingly affirm the judgment of the trial court.

[25] Affirmed.

FOOTNOTES

1.   Effective January 1, 2025, Trial Rule 53.5 was repealed. Trial Rule 7 now addresses motions to continue.

2.   Trial Rule 3.1(H) states “an attorney representing a party may file a motion to withdraw representation of the party upon a showing that the attorney has sent written notice of intent to withdraw to the party at least ten days before filing a motion to withdraw representation[.]”

3.   Even though the trial court's order largely adopted Father's proposed findings of fact and conclusions of law, the trial court “is ultimately responsible for their correctness.” Pilkington v. Pilkington, 227 N.E.3d 885, 891 n.3 (Ind. Ct. App. 2024).

May, Judge.

Judges Weissmann and Scheele concur. Weissmann, J., and Scheele, J., concur.