VOL. XXXV, No. 24 |
August 22, 2008 |
CASE CLIPS
Selected decisions of the Indiana appellate courts abstracted for judges by the Indiana Judicial Center
The full text of Indiana opinions may be retrieved from the Indiana Judicial System website at www.IN.gov/judiciary/opinions.
CRIMINAL ISSUES
Schlatter v. State (Ind. Ct. App., Mathias, J.) - The automatism defense is unavailable if the asserted "automatism" resulted from voluntary intoxication.
CIVIL ISSUES
Young v. Young (Ind., Shepard, C.J.) – (1) In a claim for Parenting Time Credit, the word “overnight” means overnight. (2) Business deductions taken by a spouse that may be ordinary for tax purposes are not necessarily determinative for child support purposes. (3) Payments to a former spouse for division of property are not deductions for child support purposes.
Byers v. Byers (Ind. Ct. App., Barnes, J.) – Mother was a necessary party in a paternity action filed by her adult child; trial court did not abuse its discretion in awarding retroactive child support, but mother (not child) was the proper recipient of those payments.
CRIMINAL ISSUES
SCHLATTER v. STATE, No. 17A05-0802-PC-61, __ N.E.2d __ (Ind. Ct. App., Aug. 15, 2008).
MATHIAS, J.
Schlatter claims that his trial counsel rendered ineffective assistance by failing to present the defense of automatism. The State argues that the defense of automatism was unavailable to Schlatter in light of his voluntary intoxication. The issue before us is therefore a question of law; if the defense of automatism was not available to Schlatter, then his trial counsel could not have been ineffective for failing to present it. To address Schlatter’s argument, we first look to the nature of the automatism defense he claims was overlooked by his trial counsel. This defense was explained by our supreme court in McClain v. State, 678 N.E.2d 104, 106 (Ind. 1997):
Automatism has been defined as “the existence in any person of behaviour of which he is unaware and over which he has no conscious control.” . . . A seminal British case concisely described automatism as “connoting the state of a person who, though capable of action, is not conscious of what he is doing.” . . . .
The McClain court noted that Indiana Code section 35-41-2-1(a) provides that “[a] person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense.” Id. at 107. The court explained that this section “codified the axiom that voluntariness is a general element of criminal behavior and reflected the premise that criminal responsibility postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.” Id. at 107 (citations and internal quotations omitted). The defense of automatism bears on the voluntariness of a defendant’s actions. Id. Thus, automatism is a defense because automatistic behavior is not voluntary. See id.
Unlike automatism, voluntary intoxication is not a defense in Indiana. Indiana Code section 35-41-2-5 (2004) provides, “Intoxication is not a defense in a prosecution for an offense and may not be taken into consideration in determining the existence of a mental state that is an element of the offense unless the defendant meets the requirements of IC 35-41-3-5 [setting forth the defense of involuntary intoxication].” This statute was upheld as constitutional by our supreme court in Sanchez v. State, 749 N.E.2d 509 (Ind. 2001).
Schlatter argues that because he claimed not to have remembered his actions and seemed to be shocked that he had had sexual intercourse with his daughter, his trial counsel should have argued that he acted automatically and was therefore not culpable for his actions. Noting that Schlatter was, admittedly, extremely intoxicated at the time he committed the acts in question, the State argues that Schlatter’s automatism defense is little more than a claim of voluntary intoxication, which is not permitted pursuant to section 35-41-2-5 and Sanchez. Schlatter responds that he is not arguing that he was not culpable because of his intoxication, but because there is evidence that he acted involuntarily, albeit at least partially because of his intoxication. Specifically, Schlatter claims that the record is clear that he was unaware of his actions as he did not remember having sex with his daughter. Based upon Sanchez, we conclude that the defense of automatism was not available to Schlatter because of his voluntary intoxication.
The Sanchez court held that the voluntary intoxication statute, by prohibiting the consideration of voluntary intoxication in determining the existence of a “mental state that is an element of the offense,” eliminated the requirement that the defendant act “knowingly” or “intentionally.” 749 N.E.2d at 517. The court rejected the notion that the voluntary intoxication statute eliminated the requirement of Indiana Code section 35-41-2-1 that voluntary actions are necessary for culpability. Sanchez, 749 N.E.2d at 517. The court then stated:
even if there may be an act rendered involuntary by intoxication, itself a doubtful premise in most circumstances, the legislature has decreed that the intoxication, if voluntary, supplies the general requirement of a voluntary act. That is sufficient to place the voluntarily intoxicated offender at risk for the consequences of his actions, even if it is claimed that the capacity has been obliterated to achieve the otherwise requisite mental state for a specific crime.
Applying this to the present case, it becomes apparent that an automatism defense would not have been available to Schlatter. The allegedly overlooked defense of automatism is a claim the defendant did not act voluntarily as required by Indiana Code section 35-41-2-1. See McClain, 678 N.E.2d at 107. According to Sanchez, however, Schlatter acted voluntarily as required by Indiana Code 35-41-2-1 when he voluntarily became intoxicated. See Sanchez, 749 N.E.2d at 517. Therefore, because Schlatter acted voluntarily in becoming intoxicated, he cannot now claim that his actions which resulted from his intoxication were involuntary, and because he cannot claim that his actions were involuntary, the automatism defense is unavailable to him. [Footnote omitted.]
MAY, J., and VAIDIK, J., concur.
CIVIL ISSUES
YOUNG v. YOUNG, No. 09S05-0803-CV-136, ___ N.E.2d ___ (Ind. Aug. 19, 2008).
Shepard, Chief Justice.
This appeal raises several important issues about child support. First, in a claim for Parenting Time Credit under the Child Support Guidelines, the word “overnight” means overnight and not something else. Second, business deductions taken by a spouse that may be ordinary for tax purposes are not necessarily determinative for child support purposes. Third, payments to a former spouse for division of property are not deductions for child support purposes.
Marla and Timothy Young married in 1988 and subsequently had three children. In August 2000, Timothy filed a petition for dissolution. In 2003, the trial court entered a decree of dissolution, awarding the parties joint custody of the three children with physical custody of the children awarded to Marla. It set Timothy’s parenting time as Tuesdays and Thursdays after school until 7:30 p.m. and every other weekend, holiday, and vacation.
. . . .
Indiana Child Support Guideline 3(G)(4) provides that trial courts “may grant the noncustodial parent a credit toward his or her weekly child support obligation . . . based upon the calculation from a Parenting Time Credit Worksheet.” In calculating Timothy’s child support obligation, the trial court awarded Timothy parenting time credit for 104 overnights, 52 of which were for actual overnight stays and 52 of which were for the two additional evenings per week Timothy spends with the children from 3 p.m. until 7:30 p.m.
. . . .
The Child Support Guidelines contain a formula for calculating parenting time credit based upon the total number of “overnights” per year that the noncustodial parent spends with the children. Child Supp. G. 6 Table PT. In explaining the term “overnight,” the commentary to the guidelines provides that
[a]n overnight will not always translate into a twenty-four hour block of time with all of the attendant costs and responsibilities. It should include, however, the costs of feeding and transporting the child, attending to school work and the like. Merely providing a child with a place to sleep in order to obtain a credit is prohibited.
Child Supp. G. 6 cmt.
We take the gist of this comment to be that not all visits in which a child stays overnight may qualify for the parenting time credit. Still, neither this comment nor any other portion of the guidelines suggests that a visit may qualify as an overnight if the child does not physically stay overnight with the noncustodial parent. If the able and careful drafters of the guidelines had intended for non-overnight visits in which the noncustodial parent provides the children with transportation from school and to and from their activities, feeds them, and does homework with them to qualify for parenting time credit, the guidelines could have easily included those visits in the formula.
The rationale behind the parenting time credit is that overnight visits with the noncustodial parent may alter some of the financial burden of the custodial and noncustodial parents in caring for the children. Because calculating the amount of financial burden alleviated by an overnight visit is difficult, the guidelines provide a standardized parenting time credit formula. Credit is not provided for evening visits because watching the children during study hours typically does little to displace the relative parental burdens. Accordingly, the number of visits a noncustodial parent receives parenting time credit for cannot exceed the number of visits in which the children physically stay overnight with the parent.
On the other hand, if after calculating the noncustodial parent’s child support obligation the court concludes that in a particular case application of the guideline amount would be unreasonable, unjust, or inappropriate, the court may deviate from that amount by entering a written finding articulating the factual circumstances supporting that conclusion. Ind. Child Support Rule 3. Noncustodial parents may be entitled to a deviation for non-overnight visits if the facts and circumstances of the case warrant it. Such facts might include, for example, the need to leave work early every day in order to pick the children up from school.
Marla contends that the trial court erred by using the adjusted gross income figure from Timothy’s tax returns without adding back any of the depreciation or other deductions taken for tax purposes as his income for calculating child support. Timothy argues that it was within the trial court’s discretion to use this amount.
. . . .
Trial courts have discretion in determining which business expenses are deductible for calculating the child support obligation of self-employed persons, but the court must engage in a careful review of the facts and circumstances in making its determination. The adjusted gross income from a party’s tax return is a useful point of reference, but the court must evaluate the deductions taken in arriving at that figure.
In this case, using the adjusted gross income from Timothy’s tax return for calculation of his child support obligation was error on multiple grounds.
For example, Timothy’s adjusted gross income figure includes a deduction of over $7,000 that Timothy invested in his retirement account. (App. at 239.) Contributions to retirement accounts are usually a wise move, but they certainly do not qualify as an ordinary and necessary business expense that should be deductible for determining child support.
Moreover, the adjusted gross income figure from Timothy’s tax returns also includes deductions of over $24,000 for redemption of Marla’s interest in the partnership, which Marla received as part of the parties’ property settlement. (Id. at 152-53.) Parties are not permitted to deduct the amount their spouse received in the property settlement from their income for calculating child support.
And further, in using the adjusted gross income figure from Timothy’s tax return in calculating his child support, the court permitted the entirety of the depreciation Timothy deducted on his tax returns to be deducted from his income for child support purposes with no apparent consideration of whether the depreciation was appropriate or was overly accelerated for favorable tax treatment. We examined this phenomenon in Glass v. Oeder, 716 N.E.2d 413, 417 (Ind. 1999), in which Justice Boehm wrote, “In general, we would assume that allowable depreciation under methods designed to encourage investment may be overstated for child support purposes.” Whereas the cost of capital can be an appropriate deduction, the trial court must carefully review these deductions to ensure they are reasonable out-of-pocket expenditures necessary to produce income. Child Supp. G. 3(A)(2).
Accordingly, we remand this issue to the trial court for reconsideration as to which of Timothy’s deductions were proper in calculating his income for child support purposes.
As part of the division of marital property, Timothy agreed to pay Marla maintenance of $565,000 at 6.5% interest over fifteen years.2 The trial court deducted this yearly payment from Timothy’s income in its child support computation. Marla argues that payments made pursuant to marital property settlements should not be deductible for child support purposes.
The commentary to the guidelines address the issue of spousal maintenance and property settlements in the context of payments made to a party’s former spouse (i.e., a former spouse who is not the parent of the child whose support is being determined). The commentary to the guidelines states:
The worksheet provides a deduction for spousal maintenance paid as a result of a former marriage . . . . Caution should be taken to assure that any credit taken is for maintenance and not for periodic payments as the result of a property settlement . . . . No such deduction is given for amounts paid by an obligor as the result of a property settlement resulting from a former marriage . . . .
Child Supp. G. 2 cmt.
We see no reason why payments made pursuant to a property settlement between the parents of the child should be treated differently. Presumably, marital assets will be equitably divided between the parties to a property settlement. If one party chooses to keep the entirety of the physical assets by paying the other spouse for her share of the assets’ value, the party who keeps the physical assets should not also be entitled to a deduction for the value of those assets that is being paid to the spouse. Otherwise, the party would receive the benefit of both possessing the assets and the deduction.
In this case, Timothy decided to keep certain marital business assets by buying out Marla’s share. The fact that he kept the business assets by paying her for her portion of the businesses’ value over fifteen years does not entitle Timothy to a deduction for the payments. The fact that the parties structured these payments as maintenance for tax purposes does not affect this outcome. Presumably, both parties benefited from this tax treatment. Just as the guidelines disallow deductions for payments made to former spouses as part of a property settlement, even if those payments were classified as maintenance by the parties, so too do we disallow deductions for property settlements made between a child’s parents. Accordingly, Timothy is not entitled to a deduction for the payments he makes pursuant to the parties’ marital property settlement when calculating his child support obligation.
We remand with direction to reexamine the child support order as respects these three elements.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
BYERS v. BYERS, No. 71A03-0803-JV-132, ___ N.E.2d ___ (Ind. Ct. App., Aug. 21, 2008).
BARNES, Judge.
Raymond Byers appeals the trial court’s award of retroactive child support and attorney fees for his adult son Brennan McGuire-Byers. We affirm in part, reverse in part, and remand.
. . . .
. . . We believe the appropriateness of a retroactive child support order for an adult child is not based on whether mother or the child filed the petition but whether the interests of everyone, including the child, are adjudicated. In re Paternity of H.J.F., 634 N.E.2d 551, 553 (Ind. Ct. App. 1994) (“Our law recognizes that in a paternity action, the child’s interests are not necessarily the same as the interests of the parents or of the State. . . . The protection of those interests demands the joining of the child as a necessary party.”), rev’d in part on other grounds by K.S. v. R.S., 669 N.E.2d 399, 405 (Ind. 1996) (holding that failure to name a child as a party in a paternity action does not necessarily render the judgment or agreement void, but instead voidable). Because Indiana law adequately addresses the issue of retroactive child support, it is unnecessary to look to other jurisdictions to determine whether the retroactive child support order was proper.
Generally, “the trial court is not required to award retroactive child support from a date prior to the filing of the paternity action. Rather, such an award is discretionary.” C.A.M. ex rel. Robles v. Miner, 835 N.E.2d 602, 606 (Ind. Ct. App. 2005); see also I.C. § 31-14-11-5. Raymond does not dispute this standard of review or the amount of the weekly child support award but argues that such payments should not be retroactive. He claims the trial court did not look at the financial resources of the non-custodial parent and the hardship the arrearage will place on Raymond’s four other young children as required by Indiana Code Section 31-14-11-2(a)(5).
This argument is not supported by citation to evidence in the record and our review of the record shows only that Raymond has four other children. In the absence of evidence showing Raymond has limited financial resources as it related to his four other children, we are not persuaded by this argument.
More importantly, in its order of retroactive child support, the trial court found:
3. The Court determines that Father was aware of the child’s birth on June 13, 1987, that he held himself out as the child’s father for a period of time, and then purposefully disappeared and made himself impossible for mother to locate. Indiana common law and public policy demands that parents be responsible for the financial support of their children. Mother has born the entire burden of that support. Father sent cards signed, “Love, Dad;” illustrating his knowledge of paternity. Father also sent the correspondences from his parents’ address. When mother contacted father’s parents in an attempt to locate father, father’s parents told mother they did not know father’s whereabouts. The Court did not find Father’s testimony that he could not recall where he lived and when he lived in various paces [sic] credible.
Appellant’s App. p. 10. The trial court’s finding regarding Raymond’s actions and credibility is unequivocal. Given that Raymond was aware that he was Brennan’s father from the time of his birth and knowingly avoided his responsibility to support him, it was within the trial court’s discretion to order retroactive child support. Raymond has not established that the trial court abused its discretion.
Raymond also appears to argue that retroactive child support is not appropriate because neither Mary nor Brennan is a proper payee. He first claims that Brennan “provided no information on any contributions he made toward his own support since his birth.” Appellant’s Br. p. 15. He also claims that the paternity statutes “do not contemplate who should be the recipient of a retroactive child support order” and that Mary’s claim was barred by the applicable statute of limitations. Id. at 14.
In a similar vein, on cross-appeal, the Appellees argue the trial court erred in ordering that the child support payments be paid directly to Brennan. In reviewing the paternity statutes, we conclude that in this case, Mary is the proper recipient of the retroactive child support payments at least until Brennan moved out of her house in 2005. “The court may order that support payments be made to any appropriate person.” I.C. § 31-14-11-9 (emphasis added). As Raymond concedes and the trial court found, Mary bore the entire burden of supporting Brennan. See Appellant’s Reply Br. p. 7. The fact that Mary was no longer statutorily permitted to file a paternity petition does not in and of itself mean that she is not entitled to the retroactive child support payments resulting therefrom. As the person who supported Brennan from the time of his birth, she logically and legally is the proper recipient of the retroactive child support payments. See Bright’s Adm’r v. Sexton, 18 Ind. 186, 187-88 (1862) (“The money recovered in a [paternity] prosecution is intended for the maintenance of the child; and the person who has the legal custody of, and who maintains the child, is entitled to it. The mother in this case having had the custody of, and having maintained the child, was entitled to the money, although the child was supported by her own means or industry, aided by what labor the child could perform.”).
In sum, we conclude that the trial court did not abuse its discretion in ordering Raymond to make retroactive child support payments. Because Mary supported Brennan at least until 2005, she should receive those payments. It is unclear, however, whether Mary continued to support Brennan after he moved in with Raymond in 2005. It is also unclear whether Mary or Brennan is entitled to the child support payments accruing after the date of the paternity petition—that is whether Mary continues to support Brennan. Accordingly, we remand for the trial court to determine whether Mary is entitled to payments for the time that Brennan was living with Raymond and whether Mary or Brennan is the proper recipient of the prospective child support payments.
. . . .
Raymond first argues that the trial court improperly awarded attorney fees to Mary because she was a “non-party.” Appellant’s Br. p. 9. It is unclear whether Raymond is challenging the trial court’s October 31, 2007, November 7, 2007, or February 19, 2008 order—all of which address the award of attorney fees. Nevertheless, Raymond’s argument is without merit.
As we have discussed, Mary was a necessary party to the action. See I.C. § 31-14-5-6. To the extent the trial court determined that Mary was a non-party or was otherwise prohibited from filing post-hearing motions, we reverse. Indiana Code Section 31-14-18-2(a)(2) provides in relevant part that a “court may order a party to pay . . . a reasonable amount for attorney’s fees, including amounts for legal services provided and costs incurred, before the commencement of the proceedings or after entry of judgment.” Because Mary was a party to the paternity action, the trial court was permitted to order Raymond to pay Mary’s attorney fees.
Raymond also argues that Mary is not entitled to an attorney fee award because she is not the “other” party as described in Indiana Code Section 31-14-18-2(a)(1), which permits the trial court to order a party to pay “a reasonable amount for the cost to the other party of maintaining an action under this article . . . .” We agree that Mary might not be considered the “other” party for purposes of this section because Brennan, not Mary, was the only party permitted to file the petition; nevertheless, costs are not an issue in this case. Raymond challenges the attorney fee award, which is governed by Indiana Code Section 31-14-18-2(a)(2) and does not limit such an award to the “other” party.
Raymond argues in the alternative that the trial court abused its discretion in ordering him to pay Brennan’s attorney fees. Raymond claims that Brennan was unjustly enriched by the award because only Mary was obligated to pay Attorney Walton. In its February 19, 2008 order, the trial court clearly ordered the attorney fees to be paid directly to Attorney Walton as permitted by Indiana Code Section 31-14-18-2(b), which provides, “The court may order the amount to be paid directly to the attorney, who may enforce the order in the attorney’s name.” Thus, Brennan did not receive a direct financial benefit of the attorney fee award. This claim also fails.
. . . .
As a necessary party, Mary was a party to the paternity action. It was within the trial court’s discretion to award retroactive child support; however, Mary, not Brennan is the proper recipient of those payments. The trial court did not abuse its discretion in ordering Raymond to pay approximately one-half of the attorney fees incurred by the Appellees. We remand for the trial court to determine the proper recipient of the payments incurred after 2005 and to determine appellate attorney fees. We affirm in part, reverse in part, and remand.
Affirmed in part, reversed in part, and remanded.
FRIEDLANDER, J., and DARDEN, J.
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