Krol v. Krol

1

Christy Krol, Appellant-Defendant, v. Anthony Krol, Appellee-Plaintiff

No. 22A-DC-2857

Court of Appeals of Indiana

August 24, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Lake Superior Court The Honorable Alexis V. Dedelow Magistrate Trial Court Cause No. 45D03-2006-DC-348

ATTORNEY FOR APPELLANT Debra Lynch Dubovich Levy &amp Dubovich Merrillville, Indiana

ATTORNEY FOR APPELLEE Andrew P. Martin Miller, Sachs & Hess, P.C. Crown Point, Indiana

Judges Vaidik and Pyle concur.

MEMORANDUM DECISION

Mathias, Judge.

[¶1] Christy Krol (“Wife”) appeals the Lake Superior Court's order granting legal custody and shared physical custody of the parties' two children to Anthony Krol ("Husband"). She also challenges several of the trial court's findings of fact, arguing that they are not supported by the evidence. Finally, Wife claims that the trial court abused its discretion by imputing income to her when calculating the parties' child support obligations.

[¶2] We affirm the trial court's custody order and the court's finding that Wife is voluntarily underemployed. However, the trial court's imputation of $1,644 income per week to Wife is not supported by the evidence. Therefore, we reverse the trial court's child support calculation and remand for proceedings consistent with this opinion.

Facts and Procedural History

[¶3] The parties were married in 2009 and two children were born to the marriage: A.K., born in October 2011, and J.K., born in May 2015. Both children suffer from severe food allergies and A.K. has been diagnosed with ADHD. Wife insists that J.K. also suffers from ADHD. Much of the conflict between the parties exists due to their differing opinions on medical treatment for the children.

[¶4] In June 2020, Wife sought a protective order against Husband alleging that he was physically abusive. After a hearing in August, the trial court found that Wife's allegations were credible and granted Wife a protective order. Husband was not able to participate in the children's doctor's appointments because of the protective order. In May 2021, the trial court issued an order granting Husband permission to participate in the children's doctor's appointments. The parties were also ordered to participate in any counseling the children's medical providers deemed appropriate.

[¶5] The day after Wife filed her petition for a protective order, Husband filed a petition for dissolution of marriage. The court provisionally awarded the parties' joint legal custody of the children over Wife's objection. Wife was awarded physical custody of the children. Also, pursuant to Husband's request, the court appointed a guardian ad litem ("GAL") for the children. The GAL issued her reports to the court in March 2022. Thereafter, the trial court held final hearings in this matter on several dates in March, April, May, and July 2022. During the hearings, both parties requested sole legal and sole physical custody. The protective order expired on August 2, 2022, while this matter was pending.

[¶6] The trial court issued the decree of dissolution and custody order on November 8, 2022. The court granted sole legal custody of the children to Husband and ordered the parties to share physical custody equally. The court also found that Wife was voluntarily underemployed and imputed income to Wife for the purposes of the child support calculation. In support of its order, the court issued the following pertinent findings of fact and conclusions of law:

20. The parties were married for eleven (11) years and attended marriage counseling throughout many of those years.

21. The parties continue to exhibit a high conflict relationship and rarely agree on anything regarding the care of minor children, especially their medical treatment. The parties currently communicate with one another via Our Family Wizard.

22. During the marriage, Husband worked full time and is currently employed as a controller for Elite Staffing. In the past, Husband also engaged in the reselling of items on eBay.

23. During the marriage, Wife was employed as a financial officer at Griffith Foods but stopped working in November 2018 to stay home and care for the parties' minor children. Wife is currently employed with the Lake Central School Corporation as an aide.

24. During the time when both parties were still working full time, maternal grandmother assisted with the care of minor children. At times maternal grandmother would arrive in the mornings and find Husband working on his eBay sales in the basement instead of tending to minor children.

25. Husband's eBay activities became a contentious issue between the parties with Wife alleging that Husband spent too much time on his eBay sales and not enough time helping with the care of the minor children and household chores. Husband argued that Wife was very rigid on the things that she wanted done around the house and with minor children.

26. With that in mind, Wife implemented a list of chores and child rearing duties for Husband to complete which included getting minor children up and ready in the mornings, cleaning the floors, garbage, cleaning half of the bathrooms maintaining the outside and both parties alternating the children's bedtime procedures which included their baths.

27. Wife was responsible for taking minor children to their medical appointments. Husband became more involved with the children's medical appointments after the date of filing.

28. Wife reports that [children] have behavioral issues while in her care. Husband reports that [children] are well behaved in his care.

29. Wife insists that both children have ADHD and that both children need to be medicated for ADHD on a daily basis because she fears that if they are not properly medicated this can lead to reckless and impulsive behavior; including, but not limited to teen pregnancy and incarceration.

30. Husband does not agree with Wife regarding [J.K] having been diagnosed with ADHD or with [J.K.] being medicated for ADHD.

31. Husband questioned [A.K.'s] diagnosis of ADHD and whether [A.K.] should take medication for same. After more information and consultations with medical providers, Husband accepted [A.K.'s] diagnosis of ADHD but continued to question whether [A.K.] needs to take the ADHD medication 24/7.

32. Dr. Avva and Dr. Higgins have left the decision of whether [A.K.] should take a second dose of ADHD medication in the evening and on non-school days up to the parents, noting that the patient does not need to take [a] stimulant when school is done and on weekends. There is no weaning and patient does not need to take [a] stimulant if it is not needed.

33. The parties disagree as to how [A.K.'s] medication is to be administered with Husband giving [A.K.] breaks from the medication in the evenings and on his days off of school while in his care; and, with Wife giving [A.K.] his ADHD medication twice per day on a daily basis.

34. During the 2021-2022 school year, minor child, [A.K.], was ten (10) years old and in the fourth (4^th) grade. [A.K.] was doing well in school with good marks both for his academics and behavior.

35. However, during the start of the 2021-2022 school year, [A.K.'s] ADHD medication was being adjusted by Dr. Avva at Husband's request to see if a lower dosage would still aid with [A.K.'s] ADHD and allow [A.K.] to gain weight. During this two (2) week period of a lower dosage of medication for [A.K.], he did gain some weight but he also experienced some ADHD symptoms and anxiety in school leading to the ADHD medication being adjusted again which improved [A.K.'s] behavior in school.

36. [A.K.] had been on a 504 Plan at school but was removed for the 2021-2022 school year when the school found that it was no longer necessary because [A.K.] had improved and was well behaved. Wife was upset with the school's decision and felt that the school was setting [A.K.] up for failure.

37. [A.K.] is also treating with Dr. Higgins for ADHD and adjustment disorder with anxiety. [A.K.] appears to be benefiting from therapy sessions.

38. Following doctor's recommendations of physical/occupational therapy, [A.K.] was placed in occupational therapy. After some sessions, [A.K.] was released. It is unclear as to whether [A.K.] was also supposed to have physical therapy but Wife did schedule [A.K.] for physical therapy.

39. During the 2021-2022 school year, minor child, [J.K.], was six (6) years old and in kindergarten. According to school reports and teachers, [J.K.] is well behaved and a good student.

40. Wife was upset when [J.K.'s] school would not immediately give him a 504 Plan or IEP when he started kindergarten.

41. Wife was upset when Dr. Avva recommended that [J.K.] not be medicated for the start of kindergarten; so Wife went to a neurologist, Dr. Salberg, to have him prescribe medication for [J.K.].

42. Dr. Avva, who is located in Illinois, has recommended that [A.K.] continue treatment with Dr. Nisha Rao who is a psychiatrist who treats children and who is located in Dyer, Indiana.

43. [J.K.] was diagnosed with Adjustment Disorder with Anxiety and participates in therapy which appears to be beneficial for [J.K.] [J.K.] also suffers from a tic disorder.

44. During kindergarten year, [J.K.] had more than seventy (70) positive reports (referred to as "DOJOs" by the school) regarding [J.K.'s] classroom behavior and only four (4) negative DOJOs. Wife did not want to focus on the more than seventy (70) positive reports or to give [J.K.] credit for said reports. Instead, Wife insisted on focusing on the four (4) negative DOJOs as a way to prove

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