Case: Lesley Farley Pitcavage v. Joel Michael Pitcavage
by Mike Kohlhaas, Bingham Greenebaum Doll
HELD: In a matter of first impression, the Court of Appeals concluded that a trial court had the authority to order Mother to undergo psychotherapy as a condition of her parenting time.
HELD: Trial court erred when it valued a 401(k) based upon only the amount of contributions made to the account during the marriage, rather than the fair market value of the entire account.
FACTS AND PROCEDURAL HISTORY:
Mother and Father married in 2006. They had one child together, born in 2008. Mother also had two older children from a prior relationship.
The parties began to experience various financial hardships, including Father losing his job. He was unable to find other employment in the Fishers area, but found an employment opportunity in St. Louis. Mother was not interested in relocating to St. Louis with Father, and, in 2010, she filed a petition for dissolution out of concern that Father might try to take Child with him when he relocated.
A lengthy and contentious custody battle followed, which included various allegations of abuse made by Mother against Father, along with complicated, untreated mental health issues asserted as to Mother. At Father’s request, the trial court appointed Dr. Bart Ferraro to perform a custody evaluation. That evaluation ultimately concluded that Father should have primary physical and sole legal custody of Child. In response, Mother retained Dr. Richard Lawlor to perform a second study. Dr. Lawlor recommended joint legal custody with Mother having primary physical custody of Child. Father then retained Dr. Stephen Ross to review both evaluations, and Dr. Ross concluded that Dr. Lawlor had made errors in scoring the MMPI-2, and that Dr. Ferraro’s evaluation was more comprehensive.
After a three-day final hearing, the trial court issued its Decree. It ordered that Father have legal and primary physical custody of Child. Mother was granted parenting time and ordered to pay child support. In addition, consistent with a recommendation made by Dr. Ferraro, the trial court ordered Mother to participate in “intensive individual psychodynamically-oriented psychotherapy.” The trial court also ordered an equal division of the marital estate. Mother appealed.
On the issue of custody, the Court of Appeals rejected Mother’s arguments that the trial court’s findings did not support its custody award. The Court of Appeals also concluded that the record supported the trial court’s decision to give custody of Child to Father, including evidence of Mother’s emotional instability, physical altercations between Mother and her older daughter, and Mother’s lack of providing a stable home environment.
As to the order of psychotherapy, the Court of Appeals noted that this was an issue of first impression. Importantly, the Court of Appeals concluded that the order for psychotherapy was not issued randomly, but instead was established as a condition for Mother’s exercise of parenting time. Further, the Indiana Parenting Time Guidelines note that Guidelines-level parenting time is not appropriate when the noncustodial parent might significantly impair the child’s emotional development. The Court concluded that the trial court acted within its discretion to order the therapy, since the record included ample evidence that Mother had issues that might benefit from therapy and that the therapy was merely a condition to Mother’s parenting time.
The Court of Appeals also rejected arguments by Mother that various assets of the marriage were not valued appropriately by the trial court, that certain liabilities were improperly omitted, and that the trial court should not have ordered each of the parties to pay half of Dr. Ferraro’s fees.
On cross-appeal, Father asserted that the trial court used an erroneous value for Mother’s 401(k). The trial court valued the 401(k) at $10,425, which was not its fair market value but, instead, was the amount of contributions made to the account during the marriage. The account had a date of filing balance of $56,820. The Court found the trial court’s valuation based upon contributions during the marriage to be error, and provided instructions on remand to substitute the fair market value of $56,820 for Mother’s 401(k).
The trial court’s judgment was affirmed in all respects, other than as to the valuation issue of Mother’s 401(k) which was remanded for further proceedings.
To view the text of this opinion in its entirety, click here: Lesley Farley Pitcavage v. Joel Michael Pitcavage