COA rejects father’s child support challenge

A Marion County father has lost his appeal of a trial court’s child support order, failing to convince the Indiana Court of Appeals that he should have been credited for make-up parenting time he was exercising after his ex-wife began prohibiting him from seeing their child.

After Emilio Alfredo Morales Perez and Lindsey Mounce divorced in November 2013, the Marion Superior Court granted physical custody to Mounce and allowed Perez to have parenting time while also ordering him to pay child support. But then in April 2017, Perez requested sole or joint legal custody of their child, M.M., alleging Mounce “withholds parenting time at will and on a whim.”

The trial court held a hearing and subsequently allowed Perez to make up his missed parenting time, attaching a calendar to the court’s order that showed Perez’s plan to make up 239 missed days in 2017 and 2018. However, the court did not grant Perez’s request to modify custody.

Perez subsequently moved to modify his child support obligation because he and his fiancée had just had a baby, and after a “contentious” discovery battle regarding his income information, Perez argued he should be given credit for his make-up parenting time. Mounce, however, maintained her ex-husband had previously received credit for those overnights even though the overnights were missed.

The trial court ultimately ordered Perez to pay $163 per week in child support with credit for 96-100 overnights. The court also granted Mounce’s request for attorney fees, ordering Perez or his attorney to pay $1,750 in fees to Mounce’s counsel.

The Indiana Court of Appeals upheld that ruling on Tuesday in Emilio Alfredo Morales Perez v. Lindsey Mounce, 18-DR-457, with Chief Judge Nancy Vaidik writing that granting Perez’s request for credit for his make-up parenting time “would result in him receiving an impermissible double credit.”

“To the extent Father argues that he is entitled to credit for 156 overnights (because that is the number of overnights he claimed he was exercising before Mother started withholding parenting time from him in 2014) instead of 96-100 overnights, … there is simply no evidence in the record that he will be exercising that amount once he makes up his missed parenting time in 2019,” Vaidik wrote. “And as Father conceded at the January 2018 hearing, he was awarded parenting time according to the guidelines – not more.”

The appellate panel also upheld the award of attorney fees, noting Perez declined the opportunity to cross-examine Mounce’s attorney about her fee affidavit and did not request to present evidence. The court also rejected Perez’s argument that he was “substantially justified” in initially withholding his employment information.