Israel v. Israel

Jamie Israel, Appellant, v. Yaima Israel, Appellee.

No. 21A-DC-1063

Court of Appeals of Indiana

May 16, 2022

Appeal from the Marion Superior Court The Honorable Kurt M Eisgruber, Judge The Honorable Christopher B. Haile Magistrate Trial Court Cause No. 49D06-1901-DC-429

ATTORNEYS FOR APPELLANT Alexander N. Mosely, Bryan L. Ciyou Ciyou and Dixon, P.C. Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Michael J. Hebenstreit, Joseph P. Rompala, Lewis & Kappes, P.C. Indianapolis, Indiana

Bailey, Judge.

Case Summary

[¶1] Jamie Israel ("Husband") appeals certain provisions of the trial court's decree of dissolution of his marriage to Yaima Israel ("Wife"). Husband alleges error regarding the trial court's disposition of marital assets, legal custody of the parties' child, and attorney's fees; we discern no error as to these issues. However, Husband also challenges the trial court's decision to include a non-disparagement clause that restrains the parties from ever making disparaging remarks about one another, regardless of whether Child is present. As to this latter issue, we agree with Father that the non-disparagement clause amounts to an unconstitutional prior restraint on speech.

[¶2] Ultimately, we affirm in part, reverse in part, and remand with instructions.

Issues

[¶3] Husband raises six issues on appeal which we restate as follows:

I. Whether the trial court erred when it valued the marital residence in accordance with an appraisal report.

II. Whether the trial court erred when it valued the personal property of the marital estate based on the parties' stipulation.

III. Whether the trial court erred when it divided Husband's retirement accounts between the parties.

IV. Whether the trial court erred when it granted sole legal custody of the parties' child to Wife.

V. Whether the trial court erred when it denied Husband's request for an award of his attorney's fees.

VI. Whether the non-disparagement clause of the dissolution decree violates the First Amendment to the United States Constitution.

Facts and Procedural History

[¶4] The parties were married on July 1, 2012, and had one child of the marriage ("Child") who was born on June 29, 2013. On January 4, 2019, Wife filed a verified petition for dissolution of the marriage, including a request for provisional orders. Wife subsequently requested a child custody and psychological evaluation pursuant to Indiana Trial Rule 35, and the court granted that request. On May 9, 2019, Husband filed his counter petition for provisional orders.

[¶5] On May 10, 2019, the trial court held a hearing on the parties' respective motions for provisional orders. On May 13, the court issued its preliminary orders which included orders that the parties had joint legal and physical custody of Child and that Wife had temporary exclusive possession of the marital residence.

[¶6] On January 22, 2021, the parties filed their "Stipulations as to Assets and Liabilities and Child Support Components" ("Stipulation"). App. at 89. The Stipulation included stipulations that: Wife's weekly gross income was $2, 248 and Husband's was $1, 923; the household goods and furnishings were valued at $4, 460; and the equity of Husband's Fidelity retirement accounts as of December 20, 2020, was $70, 870 for the "Miami" account, $263, 111 for the "NCAA" account, and $4, 577 for the "IU TDA" account. The Stipulation did not state the value, debt, or equity of the marital residence.

[¶7] The court conducted the final dissolution hearing on January 25, February 1, and March 29 of 2021. Pursuant to Husband's Trial Rule 52 request, on May 12, 2021, the trial court issued Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage ("Final Decree"). The court attached to the Final Decree a document labeled Exhibit 1 and titled "Marital Balance Sheet." Appealed Order at 15. Exhibit 1 showed that the value of the total net marital estate was $593, 346.72, Husband was awarded 56% of that total (i.e., $332, 108.36), and Wife was awarded 44% of that total (i.e., $261, 238.36).

[¶8] Regarding the marital estate, the Final Decree stated in relevant part that:

- the marital estate was to be divided 56/44 in Husband's favor;

- the marital residence had a value of $313, 500 and equity in the amount of $207, 864, and Wife was awarded the marital residence;

- the household goods had a value of $4, 460 which the parties were to split equally; - the "Miami" retirement account had equity of $70, 870 and was awarded to Husband;

- the "IU TDA" retirement account had equity of $4, 577.53 and was awarded to Husband;

- the "NCAA" retirement account had equity of $263, 111, $204, 708.83 of which was awarded to Husband, with the remaining $58, 402.17 set over to Wife as an equalizing payment.

[¶9] Regarding physical and legal custody of Child, the Final Decree stated, in relevant part:

11) Custody. … Dr. [Kevin] Byrd conducted his custody evaluation and on August 26, 2019[, ] provided a lengthy written report, which written evaluation was admitted into evidence.

A. Dr. Byrd opined that "I would rest legal custody of [Child] on [Wife's] shoulders for the time being. [Husband] has a history of 'knowing better' than the professionals that provide health care for [Child] and this will interfere with the delivery of services. Further, until substantial progress is made i[n] co-parent counseling, [Husband] and [Wife] are not capable of joint decision-making." Dr. Byrd opined that the parties should have shared physical custody. Dr. Byrd recommended the parties utilize the OurFamilyWizard app in order to keep each other apprised of [Child's] appointments and procedures. [Wife] paid the fee and accepted the app, however, [Husband] refused to utilize OurFamilyWizard until shortly before trial when it was recommended by the Parenting Coordinator.

B. Dr. Byrd recommended that the parties should continue to work with Stephanie Lowe-Burry who was the counselor for [Child] alone. For a period of time, the parties did work with Mrs. Lowe-Burry, however, in late summer 2020, [Husband] created enormous obstacles in connection with [Child's] appointments with Lowe-Burry and directed her to not have further communication with [Child]. [Husband's] attitude exhibited that he felt he knew better than Lowe-Burry what was best for [Child] and refused to allow the resumption of therapy by Lowe-Burry with [Child]. On September 8, 2020, [Wife] filed her Motion to Order Resumption of Therapy. [Husband] objected to such Motion and, after a hearing, on September 23, 2020, the Court ordered [Husband] to cooperate with resumption of therapy with Lowe-Burry. Even after such Order, [Husband] refused to cooperate and, ultimately, Lowe-Burry determined the conflict created by [Husband] was so significant[] that it was not in the best interests of [Child] to continue to meet with Lowe-Burry, and she terminated the relationship.

C. Dr. Byrd recommended a parenting coordinator be utilized by the parties. [Wife] located a parenting coordinator, however [Husband] refused to agree to have a parenting coordinator involved with the family. On July 29, 2020, [Wife] filed her Verified Petition for Appointment of Parenting Coordinator. [Husband] objected to such request. After conducting a hearing, this Court issued its Order on October 29, 2020, appointing Robert Shive as parenting coordinator. The Court makes no finding as to co-parent counseling. Whether or not such counseling would be of benefit to the parties is left to the discretion of the parenting coordinator.^[1]

D. Dr. Byrd recommended the parties have shared physical custody on a 5-5-2-2 arrangement. The parties have had shared physical custody on an alternating week basis since May 2019 and [Child] has adjusted to this schedule. The parties should continue to have shared physical custody alternating weeks with [Child].

E. The parties have substantial difficulty discussing and jointly coming to agreement concerning the health, education, and welfare of [Child] and as a result joint legal custody is unworkable.

F. Mother should have sole legal custody of [Child].

Id. at 4-5.

[¶10] Regarding attorney fees, the trial court stated:

As a result of the significant number of legal matters raised and resolved during the course of these dissolution proceedings, both parties have incurred significant attorney fees. Each has requested the other pay their attorney fees. The parties should each pay their own fees incurred in this matter.

Id. at 11.

[¶11] The Final Decree also contained a "Non-Disparagement" clause which stated in full:

The parties shall refrain from making disparaging comments about the other in writing or conversation to or in the presence of [Child], friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone. Disparaging remarks include[e], but are not limited to, negative statements, criticisms, critiques, insults[, ] or other defamatory comments. The parties shall not say or do anything or allow a third party to say or do anything about the other party in [Child's] presence that may estrange [Child] from the other party or impair his regard for the other party. The parties shall not involve [Child] in matters that are adult matters and that solely involve the parents or the other parent.

Id. at 11-12.

[¶12] Husband now appeals.

Discussion and Decision

Standard of Review

[¶13] Per Husband's request, the trial court entered findings pursuant to Indiana Trial Rule 52. Our standard of review in that situation is well-settled:

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court's

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