Jennifer Nelson for www.theindianalawyer.com
A trial court did not commit clear error when it deviated from the Indiana Child Support Guidelines by not granting a father the full parenting time credit calculated and allowed his ex-wife to claim their child each year on her taxes, the Indiana Supreme Court ruled Tuesday. The justices also outlined the best practices to be used when a trial court conducts summary proceedings.
In James Bogner v. Teresa Bogner, 45S04-1501-DR-23, James Bogner appealed the trial court’s decision to not modify his child support to $59 per week for his child with Teresa Bogner and instead deviate upward from the child support guidelines and order him to pay $105 per week. The trial court also granted the mother’s request that she be able to claim their child on her taxes each year instead of alternating each year as was previously ordered.
When father moved closer to his ex-wife, he was able to help take care of their child H.B. and he had more overnights with her, thus reducing Teresa Bogner’s child care expenses. James Bogner petitioned for a reduction in his weekly child support. The parties agreed to proceed in a summary fashion and the court found that the support calculated under the guidelines was unreasonable and created a hardship on mother.
Because James Bogner did not challenge the use of summary proceedings – which forego formal rules of procedure and evidence and allow the court to base its findings on counsels’ argument and limited evidence – while the proceeding was happening, the justices held that Bogner waived his appeal on this issue. Courts in other jurisdictions have reached a similar conclusion, Justice Steven David noted.
Because summary proceedings do not always include the following of formal rules of evidence or procedure, the justices outlined certain best practices to be used by trial courts in the future.
“These procedures would include establishing on the record: 1) affirmative agreement from the attorneys that proceedings will be conducted summarily, for those represented by counsel; 2) affirmative agreement by both clients or unrepresented litigants to summary proceedings; 3) opportunity for both parties to add any other relevant information regarding the issues in dispute before the summary proceeding is concluded or to affirm the arguments made by counsel; and 4) an advisement in advance of the hearing that either party is free to object to the form of the proceeding and request a full evidentiary hearing, upon which formal rules of evidence and procedure will be observed,†David wrote.
The high court held under the circumstances in this case, the summary proceeding was properly conducted. The trial court found applying the full parenting credit time would create a hardship on mother’s ability to provide care for H.B., and that it would be unjust for her to be left with 230 overnights a year, uninsured medical expenses, additional expenses, and have to contribute $213 weekly toward H.B.’s care while father’s obligation would be only $59 per week, especially considering that his income is greater than hers.
Father also did not object to mother’s request at the beginning of the hearing that she be allowed to claim H.B. every year on her taxes, nor did he offer any exhibits to rebut mother’s exhibits.
