Steven L. Fortner v. Janet Fortner (NFP)

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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: BRYAN LEE CIYOU Ciyou & Dixon, P.C. Indianapolis, Indiana JEFFREY A. BOGGESS Greencastle, Indiana FILED Aug 09 2010, 9:30 am IN THE COURT OF APPEALS OF INDIANA IN RE THE MARRIAGE OF: STEVEN L. FORTNER, Appellant-Petitioner, vs. JANET M. FORTNER, Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) ) No. 67A05-1001-DR-36 APPEAL FROM THE PUTNAM SUPERIOR COURT The Honorable Charles D. Bridges, Judge Cause No. 67D01-0810-DR-205 August 9, 2010 MEMORANDUM DECISION NOT FOR PUBLICATION BARNES, Judge CLERK of the supreme court, court of appeals and tax court Case Summary Steven Fortner appeals the trial court s dissolution of his marriage to Janet Fortner. We affirm in part, reverse in part, and remand. Issues Steven raises multiple issues, which we consolidate and restate as: I. whether the trial court properly granted a dissolution of the marriage; II. whether the trial court properly divided the marital estate; III. whether the trial court s custody order is clearly erroneous; IV. whether the trial court s child support order is clearly erroneous; and V. whether the trial court s order regarding his contempt petition is clearly erroneous. On cross-appeal, Janet argues that the trial court s order is clearly erroneous because it failed to address her petition for contempt and failed to order Steven to pay her attorney fees. Facts Steven and Janet were married in October 2003, and had one child, G.F., born in March 2004. Janet has two teenage sons from previous relationships. Several of her son s teenage friends have lived in Steven and Janet s household at various times. Steven and Janet s relationship deteriorated, and in September 2008, during an argument, Steven grabbed Janet by the neck, choked her, and shoved her against a wall. 2 Janet and the boys moved in with a next door neighbor, Kenny Roberts. In October 2008, Janet obtained a protective order against Steven, and Steven filed a petition for dissolution of the marriage. After Steven left their residence, Janet and the boys moved back into the house and found that Steven had vandalized some items, including urinating in Janet s coffeemaker. Janet and the boys moved back in with Roberts in November 2008, leaving the house vacant. Because the mortgage had not been paid for many months, foreclosure proceedings were initiated. At some point, the house was more significantly vandalized, and Janet blamed Steven for the damage while Steven blamed the teenage boys living with Janet. Steven initially had only supervised visitation with G.F. The trial court ordered a custody evaluation and appointed Elaine Smith to complete the evaluation. In March 2009, Smith recommended that Steven have temporary full custody. Smith had concerns about both Steven and Janet s drug use, Steven s anger issues, and the inappropriate environment at Janet s residence. After a hearing in April 2009, the trial court granted Steven unsupervised visitation with G.F. Also in April 2009, Janet filed a petition for contempt alleging that Steven had failed to abide by the trial court s provisional order requiring him to pay $125 per week in child support and $25 per week on his child support arrearage. In June 2009, Steven filed a petition for contempt alleging that Janet had disposed of a tractor despite the trial court s order restraining the parties from transferring, concealing, selling, giving away, or disposing of marital property. 3 After hearings in April, July, and August 2009, the trial court issued the following findings of fact and conclusions thereon at Janet s request. The trial court concluded that [t]he marriage of the parties has broken down and should be dissolved. App. p. 14. As for the division of property, the trial court ordered that the parties retain the personal property in their possession, except for a few items belonging to Steven that Janet had in her possession. The trial court also found that the marital residence was in foreclosure and therefore is not an issue for the Court. Id. The trial court further ordered that each party be responsible for their own debts. The trial court refused to address the depletion of a substantial buyout that Steven received in 2005 due to his GM employment because, although it found the expenditure of the money questionable, the money was spent three years prior to the filing of the dissolution action. As for custody of G.F., the trial court ordered that Janet was a proper person to have the care and physical custody of of G.F. Id. at 15. The trial court ordered that Steven have parenting time by agreement or pursuant to the Parenting Time Guidelines if the parties were unable to agree. Finally, the trial court refused to entertain either party s Contempt Citations as it appears both are culpable. Id. at 16. The trial court also ordered that each party be responsible for their own attorney fees. Analysis I. Dissolution of the Marriage Steven argues that the trial court failed to enter proper findings of fact and conclusions thereon. Specifically, Steven argues that some of the findings are lacking in detail and that the judgment is, in effect, a general judgment. 4 Generally, the trial court is required, upon request by one of the parties, to find the facts specially and state its conclusions thereon. Vukovits v. Bd. of Sch. Tr. of Rockville Cmty. Sch. Corp., 659 N.E.2d 174, 181 (Ind. Ct. App. 1995) (citing Ind. Trial Rule 52(A)), trans. denied. The purpose of special findings is to provide the parties and the reviewing courts with the theory on which the judge decided the case in order that the right of review for error may be effectively preserved. McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1252 (Ind. 1994). Whether findings of fact are adequate depends upon whether they are sufficient to disclose a valid basis under the issues for the legal result reached in the judgment. K.B. v. S.B., 415 N.E.2d 749, 754 (Ind. Ct. App. 1981). When considering the adequacy of special findings of fact, we will consider them as a whole, and we will liberally construe them in favor of the judgment. Id. The court s failure to enter findings upon a material issue for which a finding is required can be challenged for incompleteness or inadequacy. Vukovits, 659 N.E.2d at 181 (citing Ind. Trial Rule 52(B) & (D)). When the issue is immaterial or incidental, however, the trial court s failure to enter special findings does not amount to error. Id. Steven first argues that the trial court s order does not comply with Indiana Code Chapter 31-15-2 because some of the findings are lacking. Indiana Code Section 31-152-3 provides that dissolution of marriage may be decreed if, among other grounds, the trial court finds an [i]rretrievable breakdown of the marriage. A petition for dissolution of marriage must: (1) (2) be verified; and set forth the following: 5 (A) (B) (C) (D) (E) (F) The residence of each party and the length of residence in the state and county. The date of the marriage. The date on which the parties separated. The name, age, and address of: (i) any living child less than twenty-one (21) years of age; and (ii) any incapacitated child; of the marriage and whether the wife is pregnant. The grounds for dissolution of the marriage. The relief sought. Ind. Code § 31-15-2-5. Pursuant to Indiana Code Section 31-15-2-15, the trial court shall enter a dissolution decree if it finds that the material allegations of the petition are true. Steven argues that the trial court s findings are lacking because it failed to make findings regarding the grounds for dissolution, the residence of the parties and the length of the residence, the date of the marriage and separation, and whether Janet is pregnant. We note that the trial court did find that [t]he marriage of the parties has broken down and should be dissolved. App. p. 14. Although the trial court did not use the phrase [i]rretrievable breakdown, the findings as a whole were sufficient to show an irretrievable breakdown in the parties marriage. I.C. § 31-15-2-3. As for the remainder of the missing findings, there was no evidentiary dispute regarding any of these issues, and we conclude that any error was harmless. See Matter of Estate of Palamara, 513 N.E.2d 1223, 1227 (Ind. Ct. App. 1987) (holding that reversal was not merited due to a technical deficiency in the findings). Next, Steven argues that the findings are clearly erroneous because the trial court found: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that: The 6 marriage of the parties is dissolved and custody, support and property settlement be incorporated herewith. App. p. 17 (emphasis added). Steven points out that the parties did not enter into a settlement agreement. Clearly, the trial court s use of the phrase custody, support and property settlement was erroneous; however, as the settlement agreement was not mentioned anywhere else in the trial court s order, we conclude that the trial court s reference to a settlement agreement was inadvertent and mere surplusage. See Tener v. Tener, 407 N.E.2d 1198, 1201 (Ind. Ct. App. 1980) (finding no error where the commissioner s reference to a property settlement agreement was inadvertent and mere surplusage). Thus, any error was harmless. Finally, Steven contends that, in general, the findings of fact do not contain sufficient detail. He has invited us to examine each finding individually. We decline to do so. Our review of the trial court s findings of fact as a whole demonstrates that, except as noted in our analysis below, the findings are sufficient to disclose a basis for the judgment. We apply the standard of review for findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence supports the factual findings. Id. Second, we consider whether the findings support the judgment. Id. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on an incorrect legal standard. Menard, 726 N.E.2d at 1210. We give due regard to the trial court s ability to assess the credibility of 7 witnesses. Id. Although we defer substantially to findings of fact, we do not do so to conclusions of law. Id. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). II. Division of Marital Property Steven argues that the trial court did not properly divide the marital estate. Specifically, Steven argues that the trial court failed to divide the debt associated with the marital residence and failed to properly value the parties personal possessions. On cross-appeal, Janet argues that the trial court failed to address a debt to her parents. Indiana Code Section 31-15-7-4 governs the disposition of property in dissolution actions and requires that the trial court divide the property in a just and reasonable manner. I.C. § 31-15-7-4(b). The court shall presume that an equal division of marital property between the parties is just and reasonable, and the trial court may only deviate from an equal division when that presumption is rebutted. I.C. § 31-15-7-5. The trial court s division of marital property is highly fact sensitive and is subject to an abuse of discretion standard. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002). We will not weigh evidence, but will consider the evidence in a light most favorable to the judgment. Id. As for the division of personal property, the trial court ordered that the parties retain the personal property in their possession, except for a few items belonging to Steven that Janet had in her possession. On appeal, Steven argues there is no indication of how the trial court divided the property it chose to divide (certain personal property 8 and individual debts). In addition, there was substantial conflict in the testimony as to what personalty each party possessed. Appellant s Br. p. 42. Steven has failed to make a cogent argument, cite relevant authority, and provide citations to the record for his argument. Consequently, the argument is waived. See Ind. Appellate Rule 46(A)(8) Regarding the marital residence, the trial court found that the marital residence was in foreclosure and therefore is not an issue for the Court. App. p. 14. The parties agreed that the marital residence was in foreclosure and had no value to the marital estate. However, presumably, a judgment was or will be entered against the parties as a result of the foreclosure action. Because we are remanding for the trial court to consider another debt, we also direct the trial court to address this debt on remand. On cross-appeal, Janet argues that the trial court failed to address a debt of $7,200 owed to her parents. Both parties testified that Janet s parents had loaned them $7,200, but the trial court s order does not mention this debt. In his reply brief, Steven concedes that this debt was not addressed by the trial court. We remand for the trial court to consider this obviously omitted debt and any debt owed as a result of the foreclosure of the marital residence. III. Custody Order Steven contends that the trial court s order granting custody of G.F. to Janet is clearly erroneous. Child custody determinations fall squarely within the discretion of the dissolution court and will not be disturbed except for an abuse of discretion. Gonzalez v. Gonzalez, 893 N.E.2d 333, 335 (Ind. Ct. App. 2008) (citing Liddy v. Liddy, 881 N.E.2d 62, 68 (Ind. Ct. App. 2008), trans. denied). Indiana Code Section 31-17-2-8 provides: 9 The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following: (1) The age and sex of the child. (2) The wishes of the child s parent or parents. (3) The wishes of the child, with more consideration given to the child s wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) (B) the child s sibling; and (C) (5) the child s parent or parents; any other person who may significantly affect the child s best interests. The child s adjustment to the child s: (A) home; (B) school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. In granting custody of G.F. to Janet, the trial court found: 10 There was one (1) minor child born of the marriage, [G.F.], age 5 . . . . A custody evaluation was performed by Elaine Smith, who recommended custody of [G.F.] should be awarded to [Steven]. However, after the first scheduled court date, [Steven] was heard stating if [Janet s] family and supporters did not stop looking at him he was going to hurt, sue or kill someone. Additionally, on the final court date, after an admonishment by the Court on improper conduct, during [Janet s] testimony, [Steven] mouthed to her that he still loved her and never wanted this to happen, causing her to begin crying and requiring the Court to admonish him specifically. Although this Court has great respect for Ms. Smith s opinions and work product, the Court is more persuaded by [Steven s] conduct in and around the courtroom, outside of Ms. Smith s observation. The Court has the authority to reject a custody evaluator s opinion pursuant to Rogers v. Rogers, 876 N.E.2d 1121 (Ind. Ct. App. 2007), trans. denied. Following I.C. 31-17-2-8, the Court finds it to be in the child s best interest to remain in his mother s custody. [G.F.] is 5 years old and has received almost all of his care from her. Both parents wish to have custody of [G.F.], and he expresses a desire to remain in both homes. Due to his young age, the Court finds this unpersuasive. [G.F.] is most closely bonded with his mother, and his half-brother, [P.L.], who resides with his mother as well. Surely moving [G.F.] to Terre Haute with [Steven] would disrupt his adjustment to community, school, and home. Although since dismissed at [Janet s] request, there was a Protective [Order] issued against [Steven] for domestic violence, in this cause of action, for the protection of [Janet]. Although she admitted to smoking marijuana, the Court finds that to be the lesser of two evils since [Steven] has admitted to using methamphetamines. [Janet] is a proper person to have the care and physical custody of [sic] Court finds it noteworthy that [Janet s] ex-husband, Matt Landis testified that he has been divorced from [Janet] for 13 years and has never had a complaint with her parenting skills, and had to quit going to the Fortner s house over a year ago due to [Steven s] behavior. Parenting Time will be by agreement. If the parties are unable to agree, then parenting shall be pursuant to the Indiana Parenting Time Guidelines. App. p. 15-16. 11 Steven argues that the trial court s order contains insufficient findings to support its conclusion that Janet should have custody of G.F. According to Steven, the trial court s reliance on his bad behavior during the trial is erroneous because there is no connection between the bad behavior and his ability to parent and because both parties were behaving badly during the trial. Appellant s Br. p. 23. Steven also argues that his threat during the trial is merely evidence that he was a frustrated father. Finally, Steven contends that the protective order and Janet s good relationship with her ex-husband are not proper considerations. These arguments are merely requests that we reweigh the evidence, which we cannot and will not do. The trial court here had much to consider in determining proper custody for G.F. There was significant evidence of bad behavior, both admitted and accusations, regarding both Steven and Janet. Steven admittedly used methamphetamine regularly until 2006 or 2007. Janet alleged that Steven changed after the methamphetamine use and was more paranoid and had anger issues. Janet admitted to using methamphetamine with Steven on a few occasions. Janet also admitted to using marijuana since she was eighteen and using it on a daily basis for more than ten years. She did not stop using marijuana until custody of G.F. became an issue. Her older children were aware of her marijuana use and had seen her use it. Even during the custody evaluation and at the trial, Janet admitted to a very permissive view of marijuana use. Janet was described as a free spirit, and photographs admitted at the trial corroborate this description. Tr. p. 573. Steven accused Janet of having inappropriate relationships with the teenage boys living in their house, which Janet and the boys denied. Steven admittedly battered Janet shortly before they 12 separated, and Janet obtained a protective order against him. Steven admittedly urinated in Janet s coffee pot and destroyed some possessions when he left the marital residence. Janet accused Steven of violating the protective order on numerous occasions. While Janet and the boys were still living in the marital residence, Steven had the utilities turned off during the winter. Both parties accused the other of doing substantial damage to the marital residence after it was vacated during the foreclosure proceedings. As for G.F., the custody evaluator expressed significant concern with the environment at Janet s residence and recommended that Steven have custody. However, the trial court was rightly concerned with Steven s behavior during the trial and his anger issues. Ultimately, the trial court awarded custody of G.F. to Janet. While each of the parties here exhibited conduct which is and was clearly immature, certainly dangerous, and unquestionably illegal, the trial court made the decision, presumably in determining G.F. s best interests. This decision was not exactly a ringing endorsement of Janet s parenting skills as the trial court, on the record, called that judgment the lesser of two evils. App. p. 15. We do not reweigh evidence, and as a matter of law cannot say this decision was clearly erroneous. Finally, Steven argues that the trial court determined only physical custody of G.F. and failed to determine legal custody. Physical custody and legal custody are not equivalent. Reno v. Haler, 743 N.E.2d 1139, 1141 (Ind. Ct. App. 2001), trans. denied. Physical custody is defined as the physical care and supervision of a child. I. C. §§ 31-9-2-92, 31-21-2-16. A legal custodian may determine the child s upbringing, including the child s education, health care, and religious training. I.C. § 31-17-2-17. 13 The trial court here determined that Janet should have the care and physical custody of G.F. App. p. 15. It is unclear whether the care and physical custody of G.F. refers to only physical custody or both physical and legal custody. On remand, we direct the trial court to clarify its custody order on this issue. IV. Child Support Order Steven next argues that the trial court erred when it calculated his child support obligations. Decisions regarding child support generally fall within the sound discretion of the trial court. Quinn v. Threlkel, 858 N.E.2d 665, 670 (Ind. Ct. App. 2006) (citing Payton v. Payton, 847 N.E.2d 251, 253 (Ind. Ct. App. 2006)). Reversal of a trial court s child support order is merited only where the determination is clearly against the logic and effect of the facts and circumstances before the court. Id. On appeal, we will consider only the evidence and reasonable inferences favorable to the judgment. Id. We also bear in mind that although a trial court has broad discretion to tailor a child support award in light of the circumstances before it, this discretion must be exercised within the methodological framework established by the [child support] guidelines. Id. (quoting McGinley-Ellis, 638 N.E.2d at 1251-52). Here, Steven did not submit a child support worksheet, and Mother submitted an unsigned, unverified child support worksheet, to which Steven did not object. See Ind. Child Support Guideline 3(B) (requiring a signed, verified child support worksheet). Mother s worksheet recommended that Steven pay $106 per week in child support, and the trial court ordered Steven to pay this amount. However, Mother s child support worksheet also recommended that she, as custodial parent, pay the first $486 in uninsured 14 health care expenses and that she pay 19% of the remaining expenses while Steven pay 81% of the remaining expenses. The trial court ordered that Janet pay $167 in uninsured healthcare expenses and that Janet pay 25% of the remaining expenses while Steven pay 75% of the remaining expenses. The trial court did not explain its calculations. We have previously reversed and remanded to the trial court where we cannot adequately review the trial court s child support order because the parties had failed to submit verified child support worksheets and the trial court failed to enter adequate findings to justify and explain its order. Quinn, 858 N.E.2d at 670 (citing Payton, 847 N.E.2d at 253-54). The trial court here neither obtained and adopted a party s verified child support worksheet, nor did it make findings paralleling the Mother s worksheet. We are simply unable to determine how the trial court arrived at its child support calculations, especially the payment of uninsured healthcare expenses. We conclude that reversal and remand is necessary for the trial court to either adopt a verified, properly completed child support worksheet or to enter its own findings based on the requirements of the worksheet. See id. at 671. Finally, Steven argues that the trial court erred when it calculated the arrearage because it improperly gave him an abatement for extended summer parenting time. Appellant s Br. p. 39. Steven contends that he should have received an increase in parenting time credit instead of an abatement. We explained in In re S.G.H., 913 N.E.2d 1265 (Ind. Ct. App. 2009), that abatements for long periods of visitation under prior child support guidelines were dispensed with by the current guidelines in favor of parenting time credits. Thus, Steven is correct that the trial court erred by ordering an abatement of 15 his child support. Janet presented evidence that, as of July 30, 2009, Steven owed a $900 arrearage. Without explanation, the trial court ordered Steven to pay an arrearage of $625. The child support abatement was ordered on July 9, 2009, when the trial court amended its June 30, 2009 order to show that [Steven] does not have to pay child support while child is in his custody for summer visitation or until further order of the court. App. p. 10. It is unclear whether the trial court s decreased arrearage calculation resulted from the abatement. We conclude that, on remand, the trial court should explain its arrearage calculations and extended parenting time should be considered on the child support worksheet rather than as a child support abatement. V. Contempt Petitions Steven argues that the trial court failed to address his contempt petition and the trial court s failure to do so violated the open courts provision of the Indiana Constitution.1 Ind. Const. Art. 1, § 12. On cross-appeal, Janet argues that the trial court erred by failing to address her petition for contempt against Steven. Whether a person is in contempt of a court order is a matter left to the trial court s discretion. Lasater v. Lasater, 809 N.E.2d 380, 386 (Ind. Ct. App. 2004) (quoting Mitchell v. Mitchell, 785 N.E.2d 1194, 1198 (Ind. Ct. App. 2003)). We will reverse the trial court s finding of contempt only where an abuse of discretion has been shown, which occurs only when the trial court s decision is against the logic and effect of Article 1, Section 12 of the Indiana Constitution provides, All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay. 1 16 the facts and circumstances before it. Id. When we review a contempt order, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. Janet filed a petition for contempt alleging that Steven had failed to abide by the trial court s order requiring him to pay $125 per week in child support and $25 per week on his child support arrearage. Steven filed a petition for contempt alleging that Janet had disposed of a tractor despite the trial court s order restraining the parties from transferring, concealing, selling, giving away, or disposing of marital property. The trial court refused to entertain either party s Contempt Citations as it appears both are culpable. App. p. 16. Here, by finding that both parties were culpable, the trial court apparently found that both parties had violated its orders. However, we will not require the trial court to find a party to be in contempt where, as here, the court has found that those actions fall short of necessitating contempt sanctions. Van Wieren v. Van Wieren, 858 N.E.2d 216, 223 (Ind. Ct. App. 2006). Given both parties behavior in this action, we decline to find that the trial court was clearly erroneous by refusing to address the contempt petitions further. VI. Attorney Fees On cross-appeal, Janet argues that the trial court abused its discretion when it failed to order Steven to pay her attorney fees. In an action for dissolution of marriage, the trial court is authorized to order a party to pay a reasonable amount for the cost to the other party of maintaining or defending the litigation. J.M. v. N.M., 844 N.E.2d 590, 603 (Ind. Ct. App. 2006) (quoting Stratton v. Stratton, 834 N.E.2d 1146, 1152 (Ind. 17 Ct. App. 2005)), trans. denied; see Ind. Code § 31-15-10-1. The trial court enjoys broad discretion in assessing attorney fees in dissolution cases. Id. In deciding whether to make an award of attorney fees, the court should consider the resources of the parties, their economic condition, their ability to engage in gainful employment, and any other factors that bear on the reasonableness of the award. Id. Misconduct that directly results in additional litigation expenses may properly be taken into account in the trial court s decision to award attorney fees in the context of a dissolution proceeding. Id. The trial court here ordered the parties to pay their own attorney fees. Janet contends that the trial court erred because Steven has a higher income and because of his misconduct. The trial court s order does not indicate why it ordered the parties to pay their own attorney fees. However, the evidence demonstrated that both parties were struggling financially and both parties engaged in misconduct during the proceedings. Under the circumstances of this case, we cannot say that the trial court s order regarding attorney fees is clearly erroneous. Conclusion We affirm the trial court s dissolution of the parties marriage, but we remand for the trial court to consider omitted marital debts. We affirm the trial court s physical custody order but remand for clarification of the legal custody of G.F. Because of the lack of a child support worksheet or more detailed findings, we reverse the trial court s child support order and remand for clarification of the child support and arrearage calculations. We affirm the trial court s orders regarding the contempt petitions and attorney fees. 18 Affirmed in part, reversed in part, and remanded. FRIEDLANDER, J., and CRONE, J., concur. 19

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