Emilio Alfredo Morales Perez v. Lindsey Mounce

Citation: 110 N.E.3d 404Docket: 18A-DR-457

Court: Indiana Court of Appeals; September 4, 2018; Indiana; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Emilio Alfredo Morales Perez, the appellant, sought to reduce his child-support obligation due to missed parenting time with his daughter, M.M., which he was allowed to make up according to a court order. The trial court had previously established physical custody with the mother, Lindsey Mounce, and permitted Father to recover missed parenting time, totaling 239 days from 2014 to 2017. However, the court denied his request to adjust child support, stating that granting credit for make-up parenting time would constitute impermissible double credit. The court also found that Father did not meet the burden necessary for a modification of custody but warned the mother of potential sanctions if she failed to comply with the court’s parenting time order. Subsequent motions regarding child support and child-care expenses were discussed, with both parents expressing confidence in reaching an agreement.

No agreement was reached between the parents, leading to a contentious discovery dispute over Father’s wages and employment contract. On October 19, 2017, Mother submitted a second request for Father’s paystubs from May 2015 to the present and his employment contract. After Father failed to respond in a timely manner, Mother’s attorney sent multiple follow-up emails. When Father eventually provided paystubs, they only covered through September 2017, and he did not include the employment contract. Consequently, Mother filed a motion to compel discovery in late December 2017, which the court granted on January 2, 2018, requiring Father to produce the documents within five days.

During a hearing on January 16, 2018, the court inquired whether Father had complied with the order. Father’s attorney cited a nondisclosure agreement as a reason for non-compliance, which the court rejected, suggesting alternative compliance methods. Father’s attorney eventually provided the employment contract, but confusion arose regarding the completeness of Father’s paystubs. Father was directed to submit his 2017 end-of-year paystub, which he retrieved via his cellphone.

The attorneys and court calculated child support based on the updated figures. Disagreement arose regarding the number of overnights Father had with the child. Mother’s attorney argued that Father was credited with 98 overnights as per previous orders, while Father's attorney sought credit for make-up parenting time. Mother’s attorney contended that Father could not receive double credit for make-up time since it had already been accounted for. Father testified that he had the child for approximately three overnights per week and several full weeks, asserting that his make-up parenting time would conclude in early 2019.

Mother requested the trial court to order Father to pay her attorney’s fees related to a discovery dispute, providing an affidavit detailing her fees totaling $1,750 for services rendered from October 5, 2017, to January 9, 2018. Father’s attorney chose not to cross-examine Mother’s attorney about these fees. The court subsequently ordered Father to pay $163 weekly in child support, with a credit for 96-100 overnights, and required Father or his attorney to pay the $1,750 in fees to Mother. Father has appealed the decision.

In the appeal, it is noted that Mother did not file an appellee's brief, leading to the possibility of reversing the trial court’s judgment if Father’s brief demonstrates prima facie error. Father argued for a parenting-time credit based on the actual time he spent with the child, claiming he should be credited for more than the 96-100 overnights due to having at least equal parenting time with Mother for six months. However, following the divorce, Mother was awarded physical custody, and Father’s parenting time was defined under the Indiana Parenting Time Guidelines without modifications since then. 

Mother’s attorney clarified at the hearing that Father had already received credit for overnights he missed, and granting additional credit would result in a double credit, a claim Father did not dispute. Father also argued for credit based on 156 overnights from prior to 2014, but there was no evidence supporting that he would exercise that amount moving forward. As Father acknowledged that his parenting time was awarded according to the guidelines, the trial court's decision to grant a credit of 96-100 overnights was upheld as correct.

Father contests his obligation to pay Mother’s attorney’s fees related to a discovery dispute based on several arguments. He first claims the trial court failed to hold a hearing before granting Mother's request for fees, referencing Indiana Trial Rule 37(A)(4), which mandates a hearing if a motion to compel is granted. However, the court did hold a hearing, primarily discussing discovery issues, and Father acknowledged that his attorney presented arguments against compliance. Although Father asserts that more testimony should have been allowed, he declined the opportunity to question Mother’s attorney about her fee affidavit or to submit evidence.

Next, Father argues he was “substantially justified” in withholding his employment contract and not providing updated paystubs, suggesting that the contract was protected by a nondisclosure agreement. The court rejected this argument, indicating that Father could have filed the contract under protective terms instead of withholding it. Additionally, despite claiming to have provided many paystubs, Father failed to supply the most recent ones, as ordered by the court.

Finally, Father contends that even if attorney’s fees were warranted, the amount awarded was incorrect because it included fees unrelated to the motion to compel. However, he did not present this argument to the trial court, waiving it on appeal. The court affirmed the trial court’s decision.