Janel Manriquez v. Derek Lee Manriquez (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jan 20 2016, 5:51 am

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Dan J. May Jeffry G. Price Kokomo, Indiana Peru, Indiana

IN THE COURT OF APPEALS OF INDIANA

Janel Manriquez, January 20, 2016 Appellant-Defendant, Court of Appeals Case No. 52A04-1503-DR-118 v. Appeal from the Miami Superior Court II Derek Lee Manriquez, The Honorable George A. Appellee-Plaintiff Hopkins, Special Judge Trial Court Cause No. 52D02-1309-DR-270

Altice, Judge.

Case Summary [1] Janel Manriquez (Mother) appeals the trial court’s final decree of dissolution of

her marriage to Derek Lee Manriquez (Father). Although she sets out five

issues for review, her arguments boil down to two issues. First, did the trial

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court err in failing to divide Father’s 2013 tax refund between the parties?

Second, did the trial court abuse its discretion in the determination of parenting

time? [2] We affirm.

Facts & Procedural History [3] Mother and Father were married on December 30, 2008. They have two

children together, J.M. and B.M., born July 2008 and October 2011

respectively. The parties separated in August 2013 and Mother filed for divorce

on September 10, 2013, a little more than a year after the family returned from

living in Texas. [4] Since July 2012, Father has worked night shifts at the Indiana Department of

Correction. He works from about 6:00 p.m. until 6:00 a.m. on seven nights

over a two-week period. The first week he works on Monday, Tuesday,

Friday, Saturday, and Sunday. He then works Wednesday and Thursday the

next week. In light of Father’s non-traditional work schedule and Mother’s

unemployment, the parties shared custody of the children after their separation.

They agreed that Mother would care for the children in her home on the days

Father worked, and Father would care for them on the remaining days in his

parents’ home, where he was temporarily living to save money. This

arrangement resulted in the parties having an equal amount of parenting time

during a two-week period.

Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016 Page 2 of 9 [5] Following a provisional hearing on February 10, 2014, the trial court granted

legal custody of the children to Father and continued the parties’ arrangement

regarding shared physical custody. This was despite Mother’s request for

custody of the children with Father having parenting time on alternating

weekends. The court found that while the shared arrangement was “unwieldy”

it was “satisfactory and justifie[d] a deviation from the Specific Parenting Time

Provisions (Section II) of the Indiana Parenting Time Guidelines”. Appellant’s

Appendix at 20. Additionally, the court ordered Father to pay $27 per week in

child support. [6] The final hearing was held on November 13 and December 8, 2014. Both

parties sought legal and physical custody of the children. J.M. was in first

grade at the time of the final hearing. Mother testified that if she obtained

custody of the children, J.M.’s school would change because she lived in a

different county. [7] With respect to custody, Mother testified that the existing arrangement was not

in the best interest of the children. She noted several disagreements between

her and Father that had made the children upset. She indicated that this had

been the atmosphere and relationship between the parties since the provisional

order. Further, Mother’s proposed child support worksheet was calculated

based on Father exercising parenting time pursuant to the Indiana Parenting

Time Guidelines (the IPTG).

Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016 Page 3 of 9 [8] The record indicates that Mother became employed full time during the

provisional period. Since March 2014, she has worked Monday through Friday

from 8:30 a.m. to 5:30 p.m. Father’s testimony indicated that the parties

modified the shared-custody arrangement once Mother began working. In

vague terms, Father testified that after she became employed, Mother would

care for the children while he was working “whenever she was home”.

Transcript at 117. Father indicated that if he had custody of the children, he

would propose that the “sharing of [the] kids…stay like that”. Id. [9] On December 15, 2014, the trial court issued its final decree of dissolution in

which the court divided the parties’ marital estate and determined child custody

and support. Relevant to this appeal, the court split a $1015 tax refund between

the parties, awarded physical and legal custody of the children to Father,

ordered Mother to pay child support of $59 per week, and indicated that the

IPTG applied. [10] Mother filed a motion to correct error on January 7, 2015, arguing among other

things that the court failed to include Father’s 2013 tax refund in the marital

estate. Shortly thereafter, she filed an amended motion, in which she added a

claim that the trial court erred “by failing to incorporate into its ruling the

agreement of the parties to continue the shared custody arrangement whereby

both parties testified and agreed that the Mother should have the children while

the Father worked his night shift and vice versa.” Appellant’s Appendix at 24.

Father filed a response to the amended motion to correct error, but Mother did

not include this document in her appendix.

Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016 Page 4 of 9 [11] The trial court did not rule upon the motion to correct error or set it for hearing

within forty-five days. Accordingly, the motion was deemed denied on or

about February 21, 2015. Mother timely appealed.

Discussion & Decision

1. Division of Marital Property

[12] Mother initially contends that the trial court erred by failing to divide Father’s

2013 tax refund. She directs us to the provisional hearing and order referencing

the parties’ 2013 tax returns. Specifically, at the provisional hearing, Father

testified that he had filed his 2013 tax return and expected a refund of

“approximately 42 hundred.” Supplemental Transcript at 39. Accordingly, the

trial court provisionally ordered:

11. The father has filed tax returns for tax year 2013. Upon receipt of any refund(s) the father shall deliver the refund(s) to his attorney who shall hold the same in trust until further order of the court.

In the event the mother receives any tax refund(s) for tax year 2013, she shall deliver the refund(s) to her attorney who shall hold the same in trust until further order of the court.

Appellant’s Appendix at 20.1

1 The provisional order terminated once the final decree was entered. Ind. Code § 31-15-4-14.

Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016 Page 5 of 9 [13] Mother fails to acknowledge that no evidence was presented at the final hearing

regarding Father’s 2013 tax return. Indeed, her own exhibit listing assets and

debts of the marriage generally indicated “Tax Refund” with a value of $1,015.

Volume of Exhibits at Petitioner’s Exhibit 1. Her testimony did not further

enlighten the trial court regarding Father’s 2013 tax return. She testified that

the parties had already divided a tax refund from 2012 in the amount of $2500.

She then acknowledged that her attorney “ha[d] the 2013…tax refund of a

thousand fifteen in [his] trust account”. Transcript at 20. No mention was

made of a separate tax refund in the amount of $4200. [14] In its order, the trial court provided: “The parties received a tax refund in the

amount of $1,015.00. Each party shall receive one half of the refund except the

amount for mother shall be offset by the amount she owes the father for the

unpaid medical bills ($236.40).” Appellant’s Appendix at 16. This was clearly

supported by the evidence presented at the final hearing. Further, even if we

were to assume that Father’s 2013 tax refund was erroneously excluded from

the marital estate, Mother invited that error. “The doctrine of invited error is

grounded in estoppel and precludes a party from taking advantage of an error

that he or she commits, invites, or which is the natural consequence of his or

her own neglect or misconduct.” Balicki v. Balicki, 837 N.E.2d 532, 541 (Ind.

Ct. App. 2005), trans. denied. See also Galloway v. Galloway, 855 N.E.2d 302, 306

(Ind. Ct. App. 2006) (the burden of producing evidence as to the value of

marital property rests squarely on the shoulders of the parties and their

attorneys). Having failed to introduce evidence of the value or existence of a

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separate tax refund, Mother is estopped from challenging the trial court’s

distribution. See Galloway, 855 N.E.2d at 306.

2. Parenting Time

[15] Mother does not challenge the trial court’s award of legal and physical custody

of the children to Father. She contends only that the trial court abused its

discretion by failing to order parenting time beyond the minimum set out in the

IPTG. Specifically, Mother argues that the trial court should have continued

the parties’ arrangement in which she would have the children overnights when

Father worked his night shifts. [16] Decisions about parenting time require courts to give “foremost consideration”

to the best interest of the children. Perkinson v. Perkinson, 989 N.E.2d 758, 761

(Ind. 2013). We review such decisions for an abuse of discretion. Id.

“Judgments in custody matters typically turn on the facts and will be set aside

only when they are clearly erroneous.” Id. We will not substitute our judgment

if any evidence or legitimate inferences support the trial court’s judgment. Id.

See also Gomez v. Gomez, 887 N.E.2d 977, 983 (Ind. Ct. App. 2008) (“on appeal

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”). [17] The evidence reveals that upon their separation Mother and Father

implemented a unique arrangement to provide care for the children while

Father worked his night shifts. This arrangement resulted in the parties

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effectively having the children an equal amount of time over a two-week period.

By the time of the provisional hearing, Mother was no longer in favor of this

arrangement and sought primary custody with Father having parenting time

pursuant to the IPTG. The trial court, however, chose to provisionally adopt

the parties’ original arrangement, which the court found “unwieldy” but

“satisfactory”. Appellant’s Appendix at 20. [18] Once Mother began working in March 2014, the parties apparently modified

the arrangement. Although not specifically defined at trial, it can be reasonably

inferred that the modified arrangement resulted in some reduction in Mother’s

time with the children due to her work schedule. Mother testified at the final

hearing that the custody arrangement was not working in the best interest of the

children, and she testified regarding disagreements between she and Father that

had negatively affected the children. As a result, Mother asked the trial court

for custody of the children and submitted a child support worksheet indicating

that Father should be credited with ninety-eight overnights per year, which

equates to parenting time pursuant to the IPTG. [19] In its final order, the trial court summarily granted custody to Father and

ordered that the parties apply the IPTG. Mother argues on appeal that the trial

court abused its discretion because it “ignored [Mother] and [Father’s] agreed

joint parenting plan” without explanation. 2 Appellant’s Brief at 12. On the

2 To the extent Mother asserts that the trial court erred by not entering written findings regarding the best interest of the children, we observe that neither party requested that the court enter specific findings. See

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contrary, the record firmly establishes that at the provisional hearing and the

final hearing, Mother was opposed to the shared parenting plan originally

implemented by the parties. She expressly testified at the final hearing that the

plan was no longer in the children’s best interest. Accordingly, no agreed

parenting plan existed between the parties at the time of the final hearing. 3

Under the circumstances, we do not find that the trial court abused its

discretion by applying the IPTG rather than continuing the provisional

arrangement. [20] Judgment affirmed.

Robb, J., and Barnes, J., concur.

Hegerfeld v. Hegerfeld, 555 N.E.2d 853, 856 (Ind. Ct. App. 1990) (“[n]either [party] requested specific findings; therefore, it was unnecessary for the trial court to make specific findings that the custody award was in the children’s best interest”). 3 The IPTG certainly encourage parenting plans created by the parties. Section II(A) provides that if such an agreement is reached, “the parenting plan shall be reduced to writing, signed by both parties, and filed for approval by the court in order to be enforceable.”

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