Geoff Gustafson v. Ami Leigh Gomez (Winebrenner) (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 07 2015, 8:52 am
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.
APPELLANT PRO SE
Geoff Gustafson
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Geoff Gustafson, October 7, 2015
Appellant-Petitioner, Court of Appeals Cause No.
02A03-1502-JP-59
v. Appeal from the Allen Superior
Court
Ami Leigh Gomez The Honorable Daniel G. Heath,
(Winebrenner), Judge
Appellee-Respondent. Trial Court Cause No.
02D07-9712-JP-181
Barnes, Judge.
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Case Summary
[1] Geoff Gustafson appeals the trial court’s denial of his motion to modify its
order relating to postsecondary educational expenses. We affirm.
Issue
[2] Gustafson raises two issues, which we consolidate and restate as whether the
trial court properly denied his motion for modification.
Facts
[3] Gustafson and Ami Gomez are the parents of Meghan Winebrenner, who was
born in 1995. The couple was not married and, in 1997, entered into a joint
stipulation addressing issues of custody, visitation, and support. The parties’
agreement called for each parent to pay one-third of Meghan’s reasonable and
necessary college expenses.
[4] Meghan was prepared to begin college at St. Francis University in Fort Wayne
in the fall of 2013. With Gustafson’s encouragement, Meghan had intended to
participate in a tuition-exchange program, which was available to Meghan
because Gustafson’s wife was employed at a participating college. However, in
May 2013, Gustafson’s wife resigned from her job.
[5] In June 2013, Gustafson filed a motion to modify the joint stipulation. On
August 30, 2013, the trial court held a hearing on the motion and, on October
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10, 2013, issued an order.1 The trial court ordered Meghan to pay one-third of
her college expenses and Gustafson to pay 53.9% and Gomez 46.1% of the
remaining two-thirds.
[6] On November 8, 2013, Gustafson filed a motion to correct error. In the
motion, Gustafson argued that he could not afford to contribute toward
Meghan’s college expenses. Gustafson directed the trial court to his support of
his three young sons and the fact that his wife was pregnant with a fourth child.
Gustafson also questioned whether he would be able to obtain a loan to cover
his share of Meghan’s college expenses.
[7] On January 9, 2014, after a hearing, the trial court issued an order on the
motion to correct error. In a twelve-page order, the trial court denied
Gustafson’s motion to correct error in part and clarified it in part, capping
Gustafson’s and Gomez’s total obligations based on the cost of tuition at Ball
State University. The order specified in part:
B. While the Court’s authority to award post-secondary
educational expenses is discretionary, the Court, pursuant to
Indiana Code 31-16-6-2, carefully considered the evidence
presented by the parties relating to each relevant element as
required and determined that Meghan had the aptitude and
ability to succeed in the University of Saint Francis Nursing
Program and each party (Meghan, Mr. Gustafson, and Ms.
1
This order was not included in Gustafson’s appendix, but it was detailed in the chronological case
summary.
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Gomez) had the reasonable ability to meet their pro rata share of
these expenses.
C. The Court finds that Mr. Gustafson’s arguments presented at
the hearing held on December 20, 2013, have not swayed the
Court to change its findings and conclusions and the Court re-
affirms its Order of the Court entered on October 10, 2013, . . .
except as clarified or ordered herein.
*****
14. While sympathetic to the high cost of assisting a child with
college expenses, the Court does not find Mr. Gustafson’s
argument credible that the Court erred in assessing his reasonable
ability to contribute his pro rata portion of Meghan’s college
education expenses after: 1) considering Mr. Gustafson’s current
family income and current family expenses, 2) considering Mr.
Gustafson’s prior commitment to contribute to Meghan’s college
expenses, and 3) accurately and precisely calculating Mr.
Gustafson’s pro rata share of Meghan’s college expenses.
App. pp. 70, 74. Gustafson did not appeal.
[8] On August 27, 2014, Gustafson filed a motion to modify the postsecondary
educational expense order.2 On November 17, 2014, a hearing on this motion
was held. On January 22, 2015, the trial court issued an order denying
Gustafson’s motion to modify. The trial court found in part:
2
This motion is not included in Gustafson’s appendix.
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7. Father has not demonstrated a change in circumstances so
substantial and continuing so as to justify a modification of the
prior Court order regarding his contribution toward college
expenses.
8. Father’s financial position has improved since the prior
hearing, when the Court compares Petitioner’s Verified Financial
Declaration Form admitted as Petitioner’s Exhibit 2 to the
Financial Declaration forms he submitted at the prior hearing
and thereafter in support his Motion to Correct Errors and
Request for Reconsideration.
9. Father did not timely appeal the Court Order denying in part
and granting in part his Motion to Correct Error and Request For
Reconsideration. Rather, he sets forth factors, such as the birth
of a child and expenses relating thereto, as evidence he presumes
will support a finding of changed circumstances so as to justify a
modification of the prior support order regarding post-secondary
educational expenses. Most of the evidence he presented, apart
from the birth of a child and the expenses relating thereto, was
previously heard and ruled upon by the Court. Further, as
previously stated, Father’s financial position has improved
relative to the financial position he himself presented at the prior
hearing and upon the Motion to Correct Errors. Father may not
use the filing of the instant Motion to Modify Order on Post
Secondary Expenses as a means to remedy his failure to timely
appeal the Court Order concerning the partial denial of his
Motion to Correct Error.
Id. at 18. Gustafson now appeals
Analysis
[9] As an initial matter, Gomez has not filed an appellee’s brief. Under such
circumstances, we need not undertake the burden of developing an argument
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on her behalf. See Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind.
2014). Instead, we will reverse if Gustafson presents a case of prima facie error,
which in this context is defined as at first sight, on first appearance, or on the
face of it. See id.
[10] Pursuant to Indiana Code Section 31-16-8-1(b)(1), the modification of child
support may be made only “upon a showing of changed circumstances so
substantial and continuing as to make the terms unreasonable[.]”3 In reviewing
a modification order, we consider only evidence and reasonable inferences
favorable to the judgment. Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind. 2015).
“The order will only be set aside if clearly erroneous.” Id. “[A]ppellate courts
give considerable deference to the findings of the trial court in family law
matters, including findings of ‘changed circumstances’ within the meaning of
Indiana Code section 31-16-8-1.” MacLafferty v. MacLafferty, 829 N.E.2d 938,
940 (Ind. 2005).
[11] On appeal, Gustafson argues that, since the order on his motion to correct error
was issued, his income has decreased and his wife has had another child. The
trial court was not persuaded by these arguments, nor are we.
[12] Regarding his income, Gustafson argues that his income has been reduced by
$82.02 per week since the 2013 modification. However, in its motion to correct
3
Indiana Code Section 31-16-8-1(b)(2) is not applicable here because the order requested to be modified was
not issued at least twelve months before the current motion to modify.
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error order, the trial court explained that it had utilized $999.78 as Gustafson’s
weekly gross income to calculate child support and to determine Gustafson’s
pro rata share of college expenses, not the $1,096.00 weekly gross income relied
on by Gustafson on appeal. Moreover, it is clear from the trial court’s motion
to correct error order that it was difficult to obtain a complete picture of
Gustafson’s financial circumstances. For example, in addition to overtime pay
and an annual bonus, Gustafson might have had income from a rental property.
Also, the trial court also considered Gustafson’s wife’s income as an attorney
and her ability to contribute toward household expenses as part of Gustafson’s
overall financial circumstances. In support of his motion to modify, Gustafson
offers no explanation for the purported decrease in his income, and he has not
established that his income was reduced in such a substantial and continuing
manner so as to make the postsecondary educational expense order
unreasonable.
[13] Regarding the birth of Gustafson and his wife’s fourth child, at the time of the
motion to correct error, the trial court was aware of the child’s impending birth.
In fact, the child was born before the trial court issued its order on Gustafson’s
motion to correct error. We are not convinced that the birth of that child or the
expenses associated with it amounted to a continuing and substantial change in
circumstances given the procedural history and posture of this case. In the
absence of a substantial change of circumstances, Gustafson has not made a
prima facie showing that denial of his motion to modify was clearly erroneous.
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[14] Gustafson devotes much of his brief to showing that the postsecondary expense
order was unreasonable and raises many of the same issues that were raised in
the motion to correct error. However, by not timely appealing that order,
Gustafson has forfeited the right to challenge it now. See Ind. Appellate Rule
9(A)(5) (“Unless the Notice of Appeal is timely filed, the right to appeal shall be
forfeited except as provided by P.C.R. 2.”). This issue is not available for
appellate review.4
Conclusion
[15] Gustafson has not made a prima facie showing of clear error in the denial of his
motion to modify the postsecondary expense order. We affirm.
[16] Affirmed.
Kirsch, J., and Najam, J., concur.
4
Gustafson also asks us to order that he be reimbursed for the costs of service of the notice of appeal and
appellant’s brief. However, he cites no authority establishing that he is entitled to such or that we may order
such at this stage in the proceedings. This issue is waived. See Ind. App. R. 46(A)(8) (requiring each
contention to be supported by citations to authority).
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