Roberts v. Roberts

1

Lewis J. Roberts, Appellant-Petitioner, v. Catherine S. Roberts, Appellee-Respondent.

No. 22A-DC-2978

Court of Appeals of Indiana

August 31, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Lori K. Morgan Judge The Honorable Sherri Hartzler, Magistrate Trial Court Cause No. 02D08-1904-DC-399

ATTORNEY FOR APPELLANT

Thomas F. Hinde

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Caryn E. Wallace

Fort Wayne, Indiana

MEMORANDUM DECISION

Altice, Chief Judge.

Case Summary

[¶1] Lewis J. Roberts (Husband) appeals the trial court's decree dissolving his marriage to Catherine S. Roberts (Wife) (collectively, the Parties), claiming that the trial court erred in valuing the marital residence and Husband's business and awarding Wife one hundred percent of the marital estate. Husband further contends that the trial court improperly calculated the amount of child support he owed, that it abused its discretion in awarding sole legal custody of the Parties' two minor children to Wife, and that it erred in ordering him to pay a portion of the Parties' oldest daughter's college expenses. Husband also maintains that the trial court erred in finding him in contempt for nonpayment of child support and that it abused its discretion in ordering him to pay a portion of Wife's attorney's fees. Finally, Husband contends that the trial court improperly denied his motion for genetic testing.

[¶2] We affirm.

Facts and Procedural History

[¶3] The Parties were married on November 2, 2002, and separated on January 21, 2019. Three daughters (Children) were born to the marriage: A.R., born March 1, 2003; B.R., born January 7 2006; and I.R., born August 1, 2009. On April 2, 2019, Husband petitioned to dissolve the marriage.

[¶4] On July 16, 2021, Husband filed a motion requesting that Children and several nonparties undergo genetic testing. Following a hearing, the trial court denied Husband's request and issued findings of fact and conclusions of law on August 27, 2021 concluding that

5. The Court finds that through the duration of these proceedings, the Petitioner has stated under oath, in numerous verified pleadings, that he is indeed the father of the parties' three children. He has participated in contested evidentiary proceedings in which the support and care of the children was at issue. Now, Petitioner asserts that he is not the Father of these children and seeks to compel genetic testing of the parties, the children and other third parties.

6. Pursuant to I.C. 31-14-7-1 and strong public policy, there is a strong presumption that children born during the marriage are children of the marriage. This presumption is only rebutted by direct, clear and convincing evidence. Fairrow v. Fairrow, 559 N.E.2d 597, 599 (Ind.1990); see also, Sheetz v. Sheetz, 63 N.E.3d 1077 (Ind.Ct.App. 2016) (holding that Husband was estopped from seeking to rebut the presumption of paternity).

7. Further, "Judicial admissions . . . are voluntary and knowing concessions of fact by a party or a party's attorney occurring at any point in a judicial proceeding." Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind.Ct.App. 2016).... "Judicial admissions may be contained in stipulations, current pleadings in the case being tried, admissions made in open court, and admissions made pursuant to requests to admit." Id., citing 32 C.J.S., supra, § 624.

8. The Motion for Genetic testing is denied and ordered stricken.

Appellant's Appendix Vol. II at 46-47.

[¶5] During the final hearing that commenced on June 3, 2022, Husband testified that he was the sole owner of Strategic Marketing Partners, Inc. (Strategic Marketing). Strategic Marketing had no employees, and the company "functions as a marketing company." Transcript Vol. II at 66. Although Husband claimed that he did not receive a salary from Strategic Marketing, he occasionally drew funds from the business. Husband stated that Strategic Marketing operated on loans, and in April 2020, he loaned the business $36,000 from a family inheritance. Husband further testified that the total debt of the business amounted to $184,355.35.

[¶6] Husband's 2019 tax return included a profit and loss statement that reflected a loss of "-$13,995." Id. at 94. While Husband indicated that Strategic Marketing did not sell any products, the profit and loss statement listed a cost of goods sold at $122,311. Also, Husband could not produce evidence of a $14,500 vehicle and truck expense, but he assumed that "it's probably miles." Id. at 107-08.

[¶7] The evidence further showed that Husband drives a Porsche automobile valued at $23,443 at the time of filing. While Husband surmised that the monthly payment of $599 on the car was made with cash from the business, he was not sure because he "just hands everything to his CPA." Id. at 109-10. Additionally, although a meal deduction of $14,879 for the business was also listed, Husband was not able to provide proof as to what was included in that expense. Husband insisted, however, that the deduction did not include personal meals.

[¶8] Husband claimed that he received $15,899 from Strategic Marketing in 2020 and based upon that amount, he requested that $305 per week be imputed as his weekly gross income for child support purposes. However, Husband's 2020 business tax return reflected a list of gross receipts in the amount of $215,952, and a cost of goods at $118,883, for a net difference of $98,499. Notwithstanding these amounts, Husband listed no income on the financial declaration form that he submitted to the trial court.

[¶9] Husband detailed additional business losses in his 2020 tax return, but much like 2019, he could not explain the losses. More particularly, Husband listed $11,832 in attorney's fees, but he could not explain what fees were incurred by Strategic Marketing. Husband also listed $13,954 in travel expenses and testified that they "could" have been from hotels and business trips, but he could not provide proof of those expenses. Id. at 120.

[¶10] Husband testified that in 2020, the payments on his Porsche were made with cash from an unidentified source. Meal expenses in 2020 were listed as $14,610, and without any supporting documents, Husband claimed that those expenses were for business meals. Husband did not have a business valuation, but he requested that the trial court assign zero value to Strategic Marketing.

[¶11] Mark Swift appraised the parties' marital residence. As of the date of filing, Swift valued the residence at $245,000, and as of April 4, 2022, he valued it at $330,000. Husband requested that the trial court use the April 2022 appraisal to value the residence because of the increasing price of real estate and the duration of the dissolution process. On the other hand, Wife requested that the residence be valued at $245,000, and pointed out that the house needed a new roof at an estimated cost of $21,000. It was also established that Wife's parents had contributed $11,000 to the down payment of the marital residence, and Wife paid the rest. The mortgage on the marital residence was solely in Wife's name, and she made all the monthly payments.

[¶12] During the marriage, the Parties maintained separate bank accounts and filed separate tax returns. Wife's stock from First Merchants Corporation, valued at $7,887.60, was a gift from her parents. She owned the stock prior to the marriage, and it was still listed in her maiden name. Wife incurred a debt in the amount of $8,589.20 from Flagstar to help Husband get out of "a dust up with [a business] partner." Id. at 144-45. The evidence also showed that from April 2019 until December 2021, Wife provided Husband with health, dental, and vision insurance with no reimbursement from him.

[¶13] In 2005, Husband was prosecuted and convicted of federal bank fraud and conspiracy to commit fraud and was incarcerated for twenty-six months. Wife was not aware of the crimes until FBI agents arrived at their residence and arrested Husband. At the time of the arrest, the Parties had one child and Wife was pregnant with another. As a result of Husband's incarceration, he was not able to contribute to Children's care or to the maintenance of the residence. Hence, Wife obtained a loan in the amount of $45,000 while Husband was in prison so she could "just try to keep things together." Id. at 188.

[¶14] Sometime in 2005, Husband began paying $50 to $100 per month in restitution toward a $129,251 Department of Justice debt (DOJ debt). At the final hearing, Husband testified that the balance of the DOJ Debt was $75,292.22. He maintained that the DOJ Debt should be included in the marital pot and that the marital estate should be equally divided.

[¶15] The evidence showed that Wife has been employed as a fulltime nurse practitioner for over twenty-one years. She provided all health insurance for the family from October of 2007 through the date of the decree. Husband's employment from 2007 until April 2019 was sporadic, and he had not been employed by any one employer for more than a year. None of Husband's employers provided retirement benefits during the marriage. Thus, Wife made the sole contributions to the Parties' single retirement account.

[¶16] The evidence also showed that Husband traveled frequently and was gone most evenings during the marriage. He did not contribute to Children's care, take them to doctor's appointments, or pay for expenses related to the marital residence. At the final hearing, one of Children's counselors testified that the Roberts family "was one of the most...