Attorneys for Appellant Attorney for Appellee
Nana Quay-Smith Stephen P. Rothberg
Karl L. Mulvaney Fort Wayne, Indiana
Candace L. Sage
Denise W. Chavis
Bingham McHale LLP
Julie Marie Bojrab, Respondent (Appellant below),
Appeal from the Allen Superior Court, No. 02D07-0001-DR-7
The Honorable Charles A. Pratt, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-0204-CV-127
June 28, 2004
The marriage of Julie Marie Bojrab and George David Bojrab was dissolved by
dissolution decree on March 28, 2002. Upon appeal by the wife and
cross-appeal issues by the husband, the Court of Appeals affirmed in part, and
it reversed and remanded in part. Bojrab v. Bojrab, 786 N.E.2d 713
(Ind. Ct. App. 2003). The husband sought transfer, which we granted.
804 N.E.2d 747 (Ind. 2003).
The wife's appeal challenges the trial court's order prohibiting the mother's relocation, its
division of marital property, its ruling on the motion to correct error, and
its computation of child support. The husband's cross appeal alleges that the
trial court used dissimilar methodology in dividing certain similar marital assets, failed to
adjust the marital estate to reflect the husband's significant decrease in income following
entry of provisional orders for support and maintenance, failed to adjust the property
division to reflect the husband's protracted temporary payments to or for the wife
out of his post-petition property, and failed to consider in the division of
the marital property the wife's waiver of a substantial inheritance from her father
during the marriage. Having granted transfer, we elect to address only two
issues: (1) conditional prospective custody modification and (2) waiver of challenge to denial
of retroactive modification of provisional maintenance and support. As to all other
issues, the Court of Appeals is summarily affirmed pursuant to Indiana Appellate Rule
The decree expressly noted that the case of Hanks v. Arnold, 674 N.E.2d
1005 (Ind. Ct. App. 1996), affirmed a trial court's order to continue the
custody of the child with the mother unless she relocated, "whereupon, [the father]
would become the custodial parent." Appellant's Appendix at 161, quoting Hanks, 674
N.E.2d at 1007. The trial court in the present case concluded in
6. The children need regular, consistent, and quality contact with their father.
7. The best interests of the children are served by granting the [wife] custody of the parties' minor children so long as the residence remains in Allen County, Indiana.
8. The [husband] should be granted parenting time with his children as set forth in the Indiana Parenting Time Guidelines provided however, that the [husband] be afforded deviations therefrom as may be required by virtue of the time demands of his profession
in the medical field.
Appellant's Appendix at 162. While the wife proposed that she reside with the children in the four-bedroom home of her mother in Livonia, the trial court noted that, remaining in Allen County, the wife would "need additional resources to establish a new home for herself and the children" and ordered a division of the marital estate, awarding the wife a 60% distribution under these circumstances. Appellants Appendix at 163. Based upon its findings and conclusions, the trial court ordered, in part:
[The wife] is granted the custody of the parties' minor children . . . . The best interests of the children are served by requiring that they remain in the Allen County, Indiana community. Accordingly, the grant of custody of the parties' minor children is subject to maintaining their residence in Allen County, Indiana. In the event the [wife] decides to relocate outside Allen County, Indiana, without the agreement of the [husband] or further order of this court, custody of the children shall be granted to the [husband]. . . . The [husband] is granted parenting time with his children . . . . In the event the [wife] foregoes custody and moves to Livonia, Michigan, then the Indiana Parenting Time guild-
lines will be applicable to her.
Id. at 164-65.
Of the wife's several arguments regarding the trial court's order relating to the
relocation of the children's residence, we focus only on her contention that the
trial court erred in granting an automatic change of custody prospectively upon her
future relocation. She argues that the order completely disregards the trial court's
statutory obligations to grant a change of custody only upon finding both that
there is a substantial change regarding enumerated factors and also that the modification
is in the best interests of the child. Indiana Code § 31-17-2-21.
On this point, the Court of Appeals acknowledged that the prospective change allegedly ordered would probably violate the statute "if the language at issue in the trial court's dissolution order were applied in the future to enact an automatic change in custody of the children." Bojrab, 786 N.E.2d at 730. But its opinion explained:
[T]he trial court's order can be read to indicate either present or future application. To have only a present impact, the trial court's order would have had to read something like: "If Wife is staying in Allen County, then custody of the children is granted to Wife. However, if Wife is moving to Michigan, then custody of the children is granted to Husband." Rather than explicitly using present tense, the trial court's order provides that custody "shall be granted" to Husband if Wife "decides to relocate," which can be read to indicate that custody automatically would shift to Husband if Wife decides to relocate at
any time in the future.
Id. at 729. Concluding that such eventuality was "not before us today," id. at 730, the Court of Appeals interpreted the order "to be only a current denial of [the wife's] petition to move the children to Livonia," id., which it found was not erroneous and was supported by sufficient findings. Id. at 735.
We agree that a trial court may not prospectively order an automatic change of custody in the event of any significant future relocation by the wife. The decree does contain language ordering that, in the event the wife unilaterally decides to relocate outside Allen County, Indiana, "custody of the children shall be granted to the [husband]." Appellant's Appendix at 164. This language is inconsistent with the requirements of the custody modification statute, Indiana Code § 31-17-2-21. See footnote Immediately preceding such language declaring a conditional future change of custody, however, the decree states: "the grant of custody of the parties' minor children is subject to mai ntaining their residence in Allen County, Indiana." Appellant's Appendix at 164. There is a significant difference between the two phrases. One purports to automatically change custody upon the happening of a future event; the other declares that the present award of custody is conditioned upon the continuation of the children's place of residence. While the automatic future custody modification violates the custody modification statute, the conditional determination of present custody does not. The latter is a determination of present custody under carefully designated conditions. Upon a violation of said conditions by the wife as custodial parent, the basis for the custody order is undermined, and the husband may seek a change in custody pursuant to the custody modification statute. This is consistent with the operation of Indiana Code § 31-17-2-23, which establishes procedures that apply when a person who has been awarded child custody intends to relocate outside Indiana or more than 100 miles from the existing residence. The statute calls for a notice by the relocating party and, upon request of either party, "a hearing for the purposes of reviewing and modifying, if appropriate, the custody, visitation, and support orders." Ind. Code § 31-17-2-23(b) (emphasis added). Construed in this manner, the trial court's custody order is not improper. We understand this to be the position of the Court of Appeals, which we find correct.
In a separate issue, the Court of Appeals held that in restricting the
wife from relocating outside of Allen County, the trial court imposed a requirement
more restrictive than the requirements for notice provided by Indiana Code § 31-17-2-23,
and remanded for modification a
ccordingly. The husband did not challenge this determination
in his petition to transfer.
The petition for dissolution was filed by the wife on January 10, 2000.
On February 2, 2000, the trial court's provisional orders required the husband
to pay child support of $679.73 per week, granted the wife exclusive possession
of the marital residence, and ordered the husband to pay the monthly mortgage
indebtedness. Additional provisional findings were entered on August 29, 2000, including an
order that the husband pay maintenance to the wife in the sum of
$4,000 per month retroactive to January 10, 2000. Supplemental Appendix of Appellant
at 4-5. This determination was based on the husband's 1999 annual income
plus his 2000 bonus to the date of the hearing although the husband
testified "that he may leave his employment at Preferred Anesthesia consultants, Incorporated (PAC)
in the near future." Id. at 6. The husband points to
a separate order entered August 29, 2000, stating in part:
That the [husband] shall be given leave to present testimony and evidence on the issue of the alleged change in his financial circumstances since the presentation of testimony and evidence on provisional matters. . . .
That the maintenance order entered this date, August 29, 2000, shall continue in
effect, however, the Court advises that said Order is based on the parties'
incomes from the period of January 10, 2000, through July 31, 2000.
In the event that at trial, the court determines that a modification of
the maintenance order is appropriate, any amount of overpayment towards the maintenance award
shall be deducted from the [husband's]
Appellee's Supplemental Appendix of June 23, 2004, at 2. He contends that the trial court viewed its maintenance order of August 29, 2000, order "as a modifiable order, subject to revision on a retroactive basis, and that the trial court intended to hear evidence on the issue at trial with an eye toward modifying the order if the evidence supported modification." Id. at 10.
The final decree did include findings summarizing the obligations imposed by the provisional
orders of February 2 and August 29, 2000. The decree also found
that on July 31, 2000, the husband "voluntarily discontinued his employment with PAC
. . . whereby he surrendered his partnership and ownership interest," and on
August 1, 2000, "began providing pain management services through Pain Management Associates (PMA),"
an entity formed and owned by the husband and another former employee/shareholder/partner of
PAC. Appellant's Appendix at 156. The decree expressly found that
the husband "could have chosen to continue his employment, partnership and shareholder status
with PAC and [to] provide general anesthesia services, but not pain management services,"
id., that the husband "likely would have taken financial measures to maintain the
standard of living for his wife and children during the transition from his
employment with PAC to PMA," that the indebtedness incurred by the husband during
the pendency is "not an unreasonable hardship" and that the husband "had the
financial ability to pay his maintenance obligations as previously ordered." Id. at
157. The final decree ordered that "the [husband's] prayer to retroactively modify
the provisional orders is denied." Id. at 165.
The husband contends that the trial court erred in refusing to retroactively reduce
his provisional obligations so as to reflect his "real income." Br. of
Appellee at 42. He urges that during the start-up time associated with
the opening of his new practice in pain management, he lacked the means
to pay the provisional maintenance and support orders. Arguing that the evidence
established that he was entitled to a reduction in his temporary support obligation,
the husband urges that the trial court erred in declining to grant such
reduction through an adjustment of the final distribution of the marital estate.
The Court of Appeals declined to address this contention, noting that Indiana Appellate
Rule 14(A) provides that interlocutory orders for the payment of money may be
appealed as a matter of right by filing a notice of appeal within
thirty days of the interlocutory order. Because an order of temporary support
and maintenance is an order for the payment of money, the Court of
Appeals held that by failing to appeal within thirty days following the denial
of his request for modification, the husband "waived any error that occurred, and
he may not now appeal the interlocutory order on appeal of the final
judgment." Bojrab, 786 N.E.2d at 721.
Shortly after the Court of Appeals issued its decision, we decided Georgos v.
Jackson, 790 N.E.2d 448 (Ind. 2003), which held that, even though an interlocutory
order may be appealable as of right under Appellate Rule 14(A)(2), there is
no requirement that an interlocutory appeal be taken. Id. at 452.
A claimed error in an interlocutory order is not waived for failure to
take an interlocutory appeal but may be raised on appeal from the final
As to the merits of the husband's challenge to the trial court's decision
not to retroactively modify support and maintenance, we find no error. Here
the trial court found that the husband voluntarily left one position for another
and that he could have remained at his prior position, that he would
have taken financial mea
sures to maintain the standard of living for his wife
and children during the transition, and that he had the capacity to finance
the support and maintenance during this time. While legitimate reasons may exist
for a parent to leave one position and take a lower paying position
other than to avoid child support obligations, this is a matter entrusted to
the trial court and will be reversed only for abuse of discretion.
See Elliott v. Elliott, 634 N.E.2d 1345, 1348-49 (Ind. Ct. App. 1994); Ullery
v. Ullery, 605 N.E.2d 214, 215 (Ind. Ct. App. 1992). Considering the
facts most favorable to the judgment without reassessing credibility or reweighing the evidence,
we cannot say that the trial court abused its discretion in the present
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.