In Re: The Paternity of Jo.J., J.W.J. v. D.C. ( 2013 )

Jul 30 2013, 7:30 am
FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE
STATE OF INDIANA:
J.W.J.
Indianapolis, Indiana GREGORY F. ZOELLER
Attorney General of Indiana
KYLE HUNTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE PATERNITY OF Jo.J., )
)
J.W.J., )
)
Appellant-Respondent, )
)
vs. ) No. 29A05-1209-JP-447
)
D.C., )
)
Appellee-Petitioner.1 )
APPEAL FROM THE HAMILTON SUPERIOR COURT #2
The Honorable Daniel J. Pfleging, Judge
Cause No. 29D02-0708-JP-949
1
The Attorney General participates in this appeal because in the trial proceedings, the State actively
participated in this cause pursuant to Indiana Code section 31-14-4-2. Although the State’s role pursuant
to this statute is to represent the child in paternity proceedings, we also attribute the State’s arguments to
D.C. to the extent that their interests are aligned.
July 30, 2013
OPINION–FOR PUBLICATION
BAKER, Judge
J.W.J. (Father), who works as a commissioned salesman, has continuously used
“creative accounting procedures” for several years to minimize his gross income and
reduce his child support obligation. Appellant’s App. p. 32. Father also has a pattern of
accumulating large arrearages and then paying them when a petition for contempt is filed.
A few years ago, D.C. (Mother) appealed an order reducing Father’s support
obligation based on Father’s alleged decrease in earnings, and this Court reversed the trial
court’s determination of Father’s income. Before that appeal was recertified to the trial
court, however, Mother requested a temporary modification of support based on our
guidance. After a combined hearing on this petition and on yet another contempt petition
filed regarding yet another large arrearage, the trial court granted Mother’s request for
temporary modification, changing Father’s child support obligation to $252.52 per week.
The final order modifying Father’s support was not issued until the day after our Supreme
Court denied transfer of Mother’s appeal. The trial court also ordered Father jailed for
contempt but agreed to release Father upon his payment of a bond equal to six months of
future support.
Father challenges numerous aspects of the trial court’s order, including: (1)
whether the trial court could hold a hearing or issue an order on Mother’s request for a
temporary support modification while her appeal was still pending; (2) whether the trial
2
court accurately calculated his gross income, Mother’s gross income, and the final child
support obligation; and (3) whether the trial court could order him incarcerated for
contempt when he was current on his child support obligation at the time the order was
made or issue a bond for future support. Father also requests appellate attorney fees.
We conclude that although the trial court may have erred in considering Mother’s
request for “temporary support” prematurely, it did not err in modifying Father’s child
support obligation because the matter had been recertified to the trial court by the time
the final order was made. Likewise, the figures that the trial court used in arriving at the
amount of Father’s new child support obligation were within its discretion based on the
evidence presented. We also conclude that the trial court did not err in jailing Father for
contempt when Father had been warned multiple times at various hearings that this could
occur if Father failed to strictly comply with his child support obligation and that trial
courts are statutorily authorized to require a child support obligor to post a bond
guaranteeing future payments of support. Finally, we decline Father’s request for
appellate attorney fees. Accordingly, we affirm the judgment of the trial court.
FACTS2
2
We note that Father’s “statement of case” and “statement of facts” sections in his brief are replete with
self-serving facts and argument and thus do not abide by the requirement of our appellate rules to present
the facts according to the standard of review appropriate for the judgment being appealed. See Ind.
Appellate Rule 46(A)(5)-(6); Burrell v. Lewis, 743 N.E.2d 1207, 1209 (noting that a statement of facts
that is “rife with argument” is “inappropriate” and a violation of our appellate rules).
Also, during the pendency of this appeal, Father filed two motions asking this Court to consider further
evidence. The first motion asks us to consider two motions to correct errors that Father filed in July
2012—one titled Respondent’s Motion to Correct Errors re: Final Order of June 14, 2012, and the other
3
Mother and Father have been litigating child support issues concerning their minor
child, J.B.J., for several years. In July 2010, Father’s weekly child support obligation
was reduced to $149.54 plus $100 on his $6,970.81 arrearage based on Father’s alleged
decrease in earnings, and Mother appealed, raising a number of issues. On October 25,
2011, this Court affirmed in part and reversed in part in a memorandum decision. D.C. v.
J.J., No. 29A02-0708-JP-1111, 957 N.E.2d 213, at *1 (Ind. Ct. App. Oct. 25, 2011).
Concluding that the trial court erred in determining Father’s income for 2010 and by
granting Father a credit for health insurance premiums for a time period when no
coverage was being provided to J.B.J., this Court remanded the case for a redetermination
of Father’s income and a recalculation of Father’s support obligation and arrearage. Id. at
*10-12. Our Supreme Court denied transfer on June 20, 2012. D.C. v. J.J., 969 N.E.2d
605 (Ind. 2012).
While Mother’s appeal was pending, Mother requested and received a change of
judge, and the Honorable Daniel Pfleging was appointed as special judge on June 21,
2011. After a hearing in August 2011, Judge Pfleging issued an order that stated in part,
“the true certainty of the entire days’ [sic] worth of testimony is that [Father] is not
paying support as ordered.” Appellant’s Br. p. 43. Judge Pfleging further admonished
the parties to obey the court’s orders and advised them that “contempt is serious and
often results in sanctions which can mean incarceration.” Id. Finally, Judge Pfleging
titled Respondent’s Motion to Correct Errors re: Order to Pay Support. As both of these documents were
already included in Father’s appendix, we deny Father’s motion to consider filed October 9, 2012.
4
changed the location where the parties were to exchange J.B.J. for parenting time from a
fire station to a nearby gas station.3
On May 25, 2012, the trial court held a consolidated compliance hearing on one of
Mother’s prior contempt petitions and on Mother’s request for a “temporary” child
support order to be issued pending a final decision on her appeal. Appellant’s App. p. 21.
At the hearing, Father admitted that he had only been making support payments of $50
per week since March 15, 2012, and that he had not been paying anything toward his
arrearage.
Father, who is a commissioned sales professional, claimed that he had no income
because he was negotiating a new contract with Level Solutions and because he had been
injured in his part-time job at FedEx, which he had started in March 2012. However, in
the prior two months, Level Solutions had advanced Father a total of $8000, from which
Father’s future commissions were to be reduced as he began making sales for the
company. In addition, Father’s earnings while at FedEx were approximately $800.
In 2011, Father did business with Barth Electric and received approximately
$14,000 in personal commissions. Then, beginning in May or June 2011, Father’s wife
became the sole owner of Johnston Technology Group, LLC (JTG), and JTG and Level
3
In Father’s second motion to consider, Father asks us to consider the change in the parenting time
exchange location in his appeal. Father contends that this issue was included as part of the trial court’s
denial of his motion to correct errors on August 8, 2012. However, neither of Father’s motions to correct
errors denied on that date included the exchange location as an issue. Moreover, as the trial court’s
original order changing the exchange location was issued on August 26, 2011, and Father did not appeal
that order, Father’s request to include this issue in his present appeal is not timely. Ind. Appellate Rule
9(A)(1). Accordingly, Father’s second motion to consider is also denied.
5
Solutions entered into “a contract where [Father] was going out and making [sales] calls
and [Father’s wife] was basically running the company.” Tr. p. 98. Father testified that
because he was not an owner of JTG, he did not know the value of the Level Solutions
contract to JTG, and his wife received all of the commissions from that contract and used
those monies to pay their joint bills so that Father could concentrate on making sales
rather than running a business. An exhibit submitted at the hearing showed that, similar
to Father’s arrangements with Level Solutions at the time of the hearing, JTG had
received monthly commission advancements of $4000 each for the months of October
2011, November 2011, and January 2012. However, Father submitted a letter from Level
Solutions indicating that from May 2011 to December 2011, JTG earned only $1,968.72
in actual commissions. Respondent’s Ex. F.
Also in 2011, Father cashed in his IRA, receiving in excess of $58,000 that he
claimed to have used for living expenses. Father also received $63,000 from the sale of
his home, but Father reportedly gave all of this money to his ex-wife, from whom he had
separated in February 2012. Father allegedly obtained additional spending money by
selling off assets, including furniture and small recreational vehicles.
Regarding Father’s expenses, Father testified that he spent $800 monthly on
transportation costs because he was making cold sales calls all over the state trying to
“ramp up a territory.” Tr. p. 101. According to Father’s financial declaration, his other
monthly expenses totaled $2,411.19. Father also testified that his food costs “range[]
from $700.00 to $900.00 bucks a month.” Id. at 51. Father admitted to taking a $5000
6
vacation in December 2011, but he characterized his expenses as “bare bones living.” Id.
at 110. When asked how he could support these expenses with no income, Father told the
trial court that he was not behind in his rent but stated that he was considering filing
bankruptcy.
Father also claimed that he was “up to speed” on his child support obligation and
arrearage as of February 2012. Tr. p. 109. However, the State presented evidence that
since January 2012, $2,990.80 in child support had become due, Father had received
$8000 in commission advancements and $800 in other wages, but Father had fallen
further behind on his arrearage. More particularly, in the eleven weeks before the
hearing, $1,645.49 became due, but Father paid only $500 of that amount in weekly
installments of $50 and had contributed nothing to his growing arrearage, which was
$1,192.64 at the time of the hearing.
Mother testified that she earned approximately $22,000 in 2011 and that she had
$1989 in monthly expenses without accounting for childcare or food. However, Mother
failed to provide the trial court with a financial declaration.
At the conclusion of the hearing, the trial court asked Mother to submit her
financial declaration and Father to submit a child support worksheet before taking the
matter under advisement. And in the two weeks following the hearing, Father made
payments totaling $1,622.64 to become current on both his weekly support obligation and
the arrearage.
7
The parties reconvened on June 14, 2012, for the pronouncement of the trial
court’s decision. The trial court briefly recited the case’s history, including that Father
had been found in contempt of court three separate times since 2009 for his failure to pay
support in a timely and consistent manner, but that other than the contempt findings and
admonishments to pay support as ordered, no further sanctions had ever been imposed.
In relaying its findings of fact, the trial court noted that “[u]ntil 2012 [Father] had
reduced his arrearage but in 2012 the arrearage had grown by $798.27.” Appellant’s
App. p. 42. The trial court also expressed concern regarding Father’s accounting
practices, noting that Father “claims to be unemployed and/or having no income but
spends $800.00 per month in transportation to make cold calls all over the state” and that
“in late 2011 or early 2012 [Father] took a vacation and expended over $5,000 for said
vacation.” Id. at 43.
The trial court determined that Father’s failure to pay his child support obligation
timely and consistently was “willful and wanton” because during the time period since
the last contempt hearing, Father “had resources in which he was able to pay for a
vacation and pay other expenses rather than support.” Id. at 44. And although Father
was current in his support as of June 14th, the trial court determined that coercive
measures were still needed to ensure consistent payment of “future support.” Id.
Accordingly, the trial court ordered Father to serve thirty days of incarceration in the
local county jail. The trial court also ordered Father to post a $6070 cash bond to be
applied to Father’s support payments and arrearage over the next six months “to take care
8
of [Father’s] support obligations while he is ramping up his new business.” Tr. p. 172-
73. Father was released when he posted the full bond amount on June 15, 2012.
The trial court issued a formal written order regarding its June 14, 2012 orders on
June 21, 2012. And in a separate order filed the same day, the trial court further
explained that it had changed Father’s weekly support obligation to $252.52 per week
based on its determination that Father’s weekly gross income was $1847. In arriving at
this income amount, the trial court reiterated its concern that Father “uses creative
accounting procedures and/or numerous corporations to confuse and on some occasions
to actually misstate his income position.” Appellant’s App. p. 32. In particular, the trial
court noted that Father has $3270 in monthly expenses but that “[s]omehow, [Father]
makes his expenses with no income.” Id. at 31. The trial court further stated that it was
attributing a weekly income of $1847 to Father because that amount, though
“substantially lower than the State’s [worksheet provides] . . . will reflect what he would
have to earn to meet the expenses that he indicates he has.” Id. at 33.
The trial court attached four child support worksheets to its order—one submitted
by Father, one submitted by the State on behalf of Mother but not signed by her, 4 and two
created sua sponte by the trial court. Each worksheet provided for a different child
support amount, with those amounts ranging from $95 to $278.77 per week, but the trial
4
Although the child support worksheet was not signed by Mother, the State based Mother’s income and
liabilities off Mother’s financial declaration, which Mother had signed under penalty of perjury and
submitted after the conclusion of the May 25, 2012 hearing.
9
court did not adopt any one worksheet in particular in temporarily modifying Father’s
support obligation to $252.52 per week.
Father filed two motions to correct errors, one for each of the court’s final orders,
on July 16 and 20, 2012. The trial court denied both motions, and Father now appeals.
DISCUSSION AND DECISION
Father raises numerous issues for our consideration. More particularly, Father
asserts that the trial court lacked jurisdiction to issue a temporary support order while
Mother’s appeal was still pending, and that even if the trial court could temporarily
modify child support during Mother’s appeal, the specific support amount ordered was
not supported by the evidence. Next, Father claims that the trial court erred when it held
Father in contempt and ordered his incarceration without due process of law. Finally,
Father contends that he is entitled to attorney fees.
We will affirm the trial court’s judgment on an issue of child support unless it is
clearly erroneous, meaning that it is clearly against the logic and effect of the facts and
circumstances before the court. McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1252 (Ind.
1994). We consider only the evidence and reasonable inferences supporting the trial
court’s judgment and refrain from reweighing the evidence or assessing the credibility of
witnesses. Hamiter v. Torrence, 717 N.E.2d 1249, 1252 (Ind. Ct. App. 1999). Moreover,
because Father is appealing from the denial of two motions to correct error, we note that
a trial court’s decision on a motion to correct error “comes to an appellate court cloaked
10
in a presumption of correctness.” Petersen v. Burton, 871 N.E.2d 1025, 1028 (Ind. Ct.
App. 2007).
I. Jurisdiction to Issue Temporary Support Order
As mentioned above, Father’s first contention is that the trial court lacked the
authority to modify the existing child support order while Mother’s appeal was pending.
And because our Supreme Court did not deny transfer on Mother’s appeal until June 20,
2012, Father asserts that the trial court should never have granted Mother a hearing on
May 25, 2012, and that all of the orders stemming from evidence presented at that
hearing should be vacated as being issued without subject-matter jurisdiction.
When the trial court was discussing with the parties what was to be addressed at
the May 25, 2012 hearing, the following colloquy took place:
[Father’s attorney:] We are here on modification?
THE COURT: No, a temporary order, not modification.
[Father’s attorney:] What’s the difference?
THE COURT: I’m not really sure.
Tr. p. 148.
Mother offered the following explanation regarding why she had requested a
temporary support order:
I am largely dependent on $250.00 a week to sustain the bills that this
family has, and I requested . . . temporary child support to be put in place,
so that there would not be a lag time between now and the decision that will
be handed down from the higher courts, and I absolutely need $250.00 a
week to pay my bills.
11
Id. at 149-50.
As Father suggests, the appeal of a particular issue—here, the amount of Father’s
weekly child support obligation—generally divests the trial court of further jurisdiction
over the issue until the appeal is finalized. Elbert v. Elbert, 579 N.E.2d 102, 114 (Ind. Ct.
App. 1991). In Harris v. Harris, this Court considered whether the premature filing of a
petition to modify child support made the subsequent modification void. 800 N.E.2d 930
(Ind. Ct. App. 2003). In concluding that it did not, we reasoned that “the filing of any
such premature pleading may subsequently be cured so long as the trial court does not
invoke jurisdiction of the matter.” Id. at 937. Thus, because the trial court had not
actually modified child support until after the trial court’s judgment was affirmed on
appeal and the matter was recertified to the trial court, at which point the trial court was
once again vested with jurisdiction over the support issue, there was no error in ordering
a prospective modification of support. Id. However, the Harris Court also concluded that
it was error for the trial court to order the modification retroactive to the date of the
premature filing because “[t]o so hold would be to validate without qualification the
filing of the Petition to Modify as of that date.” Id.
In this case, by requesting “temporary support,” it is apparent that Mother was
hoping to take premature advantage of certain favorable aspects of our memorandum
decision in D.C. v. J.J., No. 29A02-0708-JP-1111, 957 N.E.2d 213, at *1 (Ind. Ct. App.
Oct. 25, 2011). Specifically, although Mother had petitioned for transfer to our Supreme
12
Court on other issues that were decided less favorably to her, she wanted the trial court to
proceed to recalculate Father’s income and child support obligation based on the
memorandum decision’s guidance, even though the matter had not yet been recertified
back to the trial court.
Although, based on Harris, Mother’s request was premature, the trial court’s final,
written orders temporarily modifying child support were not issued until June 21, 2012—
one day after our Supreme Court denied transfer. These are the orders from which Father
filed his motions to correct error. Thus, as these orders recalculating Father’s income and
support obligation were not issued until after the denial of transfer, the trial court did not
err in modifying Father’s support obligation prospectively. See Harris, 800 N.E.2d at
937. Moreover, unlike Harris where this Court had affirmed the trial court’s judgment on
appeal, here the trial court was ordered on remand to recalculate Father’s income and
child support obligation back to 2010. D.C. v. J.J., 957 N.E.2d at *11. Thus, the trial
court acted within its discretion to modify Father’s child support obligation effective June
14, 2012.5
5
During the pendency of this appeal, the trial court also recalculated Father’s income and child support
obligations for 2010, 2011, and 2012. After an order was issued on March 18, 2013, Father filed a
“Motion to Vacate Order of Lower Court and to Set Emergency Hearing for Child Support” on May 9,
2013, asking us to conclude that the trial court was once again divested of jurisdiction to consider these
issues as a result of the present appeal. However, because the orders currently being appealed did not
recalculate Father’s 2010, 2011, or 2012 child support obligations prior to June 14, 2012, as the trial court
had been ordered to do on remand, Father’s income and child support obligations for those periods
remained within the jurisdiction of the trial court during the pendency of this appeal. If Father wished to
appeal the trial court’s order issued March 18, 2013, he should have filed a separate notice of appeal.
Father cannot include his challenges to that order in the present appeal. Father’s motion is hereby denied.
13
We note for the purpose of clarification that a trial court is not precluded from
entertaining a separate and distinct petition to modify child support even if a previous
support order is still being appealed. See Clark v. State, 727 N.E.2d 18, 21 (Ind. Ct. App.
2000) (explaining that a trial court retains jurisdiction notwithstanding an appeal to
“preside over matters which are independent of and do not interfere with the subject
matter of the appeal”). Indiana Code section 31-16-18-1(b) provides that, subject to
certain exceptions not relevant here, child support orders may be modified either:
(1) upon a showing of changed circumstances so substantial and continuing
as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that
differs by more than twenty percent (20%) from the amount that would
be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least
twelve (12) months before the petition requesting modification was
filed.
Because a statutory right to modify support exists any time the elements of either
subsection are met, the trial court retains continuing jurisdiction to consider separate and
distinct petitions to modify child support regardless of whether a prior order is still on
appeal. See Clark, 727 N.E.2d at 21 (holding that a trial court retained jurisdiction to
consider whether to revoke a defendant’s probation during his direct criminal appeal
because the revocation issue was sufficiently distinct from the issues to be decided in the
appeal). We agree with the State that “[f]or the best interest of the child and efficiency of
14
the courts, the trial court must maintain prospective jurisdiction to alter support orders
when a change in circumstances warrants it.” Appellee’s Br. p. 10.
Here, however, Mother requested temporary support based on the intermediate
appellate decision without waiting for the matter to be recertified to the trial court.
Moreover, the trial court did not include in its orders findings that would have supported
modification under Indiana Code section 31-16-18-1(b)(1) or (2), and indeed, the trial
court told the parties specifically that it was not considering Mother’s petition for
temporary support as a separate petition to modify child support. Tr. p. 148. Therefore,
we do not consider Mother’s request to have been a separate and distinct request for
support modification.
II. Parents’ Income and Amount of Support
Father next claims that the trial court’s $252.52 weekly child support order was
inconsistent with the evidence presented at the hearing. In making this claim, Father
contends that the trial court erred in its calculations of both his income and Mother’s
income and in its calculation of the total amount of weekly child support due.
A. Father’s Income
Regarding Father’s income, the trial court stated that “it is almost impossible to
determine the true and accurate income being earned by [Father]” because of how he
presents his income information. Appellant’s App. p. 43. Nevertheless, the trial court
defended its decision to attribute a gross weekly income of $1847 to Father because that
amount, although “substantially lower than the State’s [worksheet provides] . . . will
15
reflect what he would have to earn to meet the expenses that he indicates he has.” Tr. p.
33. Father claims that the trial court erred by claiming to have arrived at this income
amount based on his expenses when in actuality the amount is just an average of the $925
that Father claimed on his child support worksheet and the $2769 alleged by the State.
Moreover, Father maintains that because the trial court found that he had $3270 in
monthly expenses, he actually needed even less than his claimed $925 per week to meet
all of his expenses, and thus, the trial court’s imputation of $1847 in gross weekly income
to him on the basis of his expenses was clearly erroneous.
Our child support guidelines broadly define weekly gross income “to include not
only actual income from employment, but also potential income and imputed income
from ‘in-kind’ benefits.” Glover v. Torrence, 723 N.E.2d 924, 936 (Ind. Ct. App. 2000).
And in the case of irregular income such as that earned by Father, the guidelines
recognize that the calculations necessary to arrive at a just result are “very fact sensitive.”
Ind. Child Support Guideline 3A, cmt. 2(b). Moreover, the guidelines urge judges and
practitioners to “be innovative in finding ways to include income that would have
benefited the family had it remained intact, but be receptive to deviations where reasons
justify them.” Id. To that end, “[a] trial court has wide discretion with regard to
imputing income to ensure the child support obligor does not evade his or her support
obligation.” Miller v. Sugden, 849 N.E.2d 758, 761 (Ind. Ct. App. 2006).
It is apparent that the trial court was well within its discretion to attempt to
calculate Father’s actual income based upon his expenses. See Glover, 723 N.E.2d at 937
16
(holding that a trial court did not err in imputing income to a father based on his reported
expenses, especially in light of “Father’s history of under representing his income and the
large discrepancy between his reported income and his expenses”). The question
remains, however, whether the evidence supports the amount at which the trial court
arrived. Father is correct that $1847 is the average of the $925 that Father claimed to be
his income and the $2769 that the State had attributed to him in its worksheet. But it
does not necessarily follow that this amount was not supported by evidence in the record.
Contrary to Father’s assertions, the trial court did not actually find that he had only
$3270 in monthly expenses but rather that Father’s claimed expenses totaled “in excess
of $3270.” Appellant’s App. p. 32 (emphasis added). In fact, Father’s financial
declaration listed monthly expenses totaling $3,211.19 and weekly expenses, including
weekly court-ordered child support for his prior children, of $238.02. Ex. A. Converting
Father’s separately listed weekly expenses into monthly expenses, we arrive at additional
monthly expenses of $1,023.49. Thus, according to Father’s own financial declaration,
his regular monthly expenses equaled $4,234.68. Moreover, Father admitted to having
additional expenses at the May 25, 2012 hearing that he had left off of his financial
declaration, including additional food costs of up to $300 per month, taking his children
to the movies, and taking a $5000 vacation within the six months prior to the hearing. Tr.
p. 51, 60, 103-04.
Under these circumstances and taking into consideration the trial court’s finding
that it is “almost impossible to determine” Father’s true income, appellant’s app. p. 43,
17
we cannot now conclude that the trial court erred by arriving at Father’s income by
averaging the amount Father claimed to be his income and the amount attributed to him
by the State. See Elliott v. Elliott, 634 N.E.2d 1345, 1349 (concluding that a trial court
did not err in imputing income to a father above what he reported on his child support
worksheet when there was evidence that the father may not have reported all of his
income); see also Walters v. Walters, 901 N.E.2d 508, 513-14 (Ind. Ct. App. 2009)
(upholding the trial court’s calculation of a mother’s income seemingly based on an
average of the amounts alleged by both parties).
B. Mother’s Income
Regarding Mother’s income, Father claims that the trial court was without an
adequate basis to arrive at a weekly gross income amount of $379 for Mother because
Mother failed to provide any evidence during the hearing to support the business
expenses that she claimed on her financial declaration and because she did not sign the
child support worksheet submitted on her behalf by the State. Moreover, Father argues
that the trial court erred by giving Mother credit for child care expenses. Finally, Father
argues that the trial court should have imputed additional income to Mother because she
has the potential to earn $70,000 per year.
There is some support for Father’s contention that a trial court may not base an
award of child support on an unsigned and unverified child support worksheet. In Cobb
v. Cobb, this Court reversed a trial court’s modifying child support when the order “could
only have been based on [the father’s] unsigned and unverified worksheet . . . , which
18
contradicted his trial testimony as to his income.” 588 N.E.2d 571, 574-75 (Ind. Ct. App.
1992). However, in this case, the trial court’s determination of Mother’s income was
supported, rather than contradicted, by evidence in the record.
More specifically, Mother testified at the May 25, 2012 hearing that she owns two
businesses and earns “roughly $20,000.00 a year.” Tr. p. 155, 158. In 2011, Mother
earned $22,000 in total gross income and had about $4000 in related business expenses.
Tr. p. 158-59.
Mother also signed and submitted both a child support worksheet and a financial
declaration. The worksheet, which Mother submitted at the hearing, indicated a weekly
gross income of $461.54, but it did not specifically indicate whether Mother had
deducted any business expenses from that amount. Ex. 3. Mother’s worksheet did not
request a reduction for work-related child care expenses and indeed, she indicated at the
hearing that she was not requesting that deduction to be included in her request for
temporary support. Id.; Tr. p. 154. Mother’s financial declaration, which she submitted
after the hearing, provided for weekly self-employment gross income of $423 and weekly
child support income of $125 for her subsequent-born child, as well as deductions
totaling $169. Appellant’s App. p. 167. The final sum of these figures equaled $379,
which the State used as Mother’s gross weekly income in the worksheet it submitted and
which the trial court also adopted as Mother’s gross weekly income amount on the
worksheets it created. Id. at 37, 39-40.
19
Our child support guidelines define weekly gross income from self-employment as
“gross receipts minus ordinary and necessary expenses.” Ind. Child Support Guideline
3(A)(2). Additionally, the guidelines provide that “[i]ncome statements of parents shall
be verified with documentation of both current and past income.” Ind. Child Support
Guideline 3(B)(2). However, the commentary to Guideline 3(B) states that “[t]he
requirement of income verification is not a change in the law but merely a suggestion to
judges that they take care in determining the income of each party.” Id., cmt. 2.
Using the $379 per week figure that the trial court adopted as Mother’s gross
weekly income, Mother would have an annual income of $19,708. This amount was
clearly supported by Mother’s testimony that she earns approximately $20,000 per year
and that in the previous year, her weekly gross income for child support purposes (gross
receipts less business expenses) would have been $18,000. Although Mother did not
offer independent evidence of her expenses, we conclude that the decision of whether to
require such verification is a matter within the sound discretion of the trial court because
it inherently involves a question of witness credibility. While it may be better practice to
require such independent evidence, here we do not find it to have been an abuse of
discretion for the trial court to have foregone the suggestion.
In a related argument, Father contends that the trial court erred by “at least
partially” allowing Mother a credit for work-related child care expenses, especially when
this issue was part of Mother’s appeal. Appellant’s Br. p. 17. First, although work-
related child care expenses were an issue in Mother’s appeal, we reiterate that the trial
20
court was once again vested with jurisdiction to reconsider this issue prospectively as of
the date of its final, written orders.6
Second, Guideline 3(E)(1) provides that reasonable child care costs “incurred due
to employment or job search” should be added to the basic child support obligation and
then deducted from the child support obligation of the parent who pays for the child care.
Thus, these costs are not to be deducted directly from a parent’s employment
compensation to arrive at the parent’s gross weekly income.
The trial court found that “[Mother’s] financial declaration indicates that she has
work-related [child care] expenses in the sum of $78 a week” but that “[n]either support
worksheet shows that expense.” Appellant’s App. p. 32. The trial court then created two
worksheets on its own, with both attributing gross income to Mother in the amount of
$379 per week but only one of the worksheets showing that Mother has work-related
child care costs of $78 per week.
We note that it appears that the State’s adoption of $379 as Mother’s gross weekly
income appears to be based on Mother’s financial declaration, which indeed included a
$78 deduction for child care expenses. Appellant’s App. p. 167. However, the trial court
specifically found that the State’s worksheet did not include a credit for work-related
child care expenses. Thus, the trial court may have accepted $379 as Mother’s gross
weekly income notwithstanding any deduction or credit for child care expenses included
6
During Mother’s appeal, this Court determined that the trial court had not erred by refusing to allow
Mother to take a work-related child care costs deduction for J.B.J. because Mother works from home and
was able to watch her other son simultaneously, so it followed that Mother could do the same for J.B.J.
D.C. v. J.J., memo op. at *9.
21
in Mother’s financial declaration. Indeed, as discussed above, there was independent
evidence supporting a finding that Mother’s weekly gross income was $379 even without
the child care expense deduction. Thus, this argument fails.
Father’s final argument related to Mother’s income asks us to find that the trial
court erred by not imputing potential income to Mother. However, this is merely a
request to reweigh the evidence, which we may not do. In sum, we conclude that the trial
court’s determination that Mother’s weekly gross income was $379 was not clearly
erroneous.
C. Calculation of Support
Father next maintains that “it is unclear how the court arrived at a figure of
$252.52 other than Mother’s request that support be $250 per week.” Appellant’s Br. p.
17. Indiana Child Support Rule 2 provides for “a rebuttable presumption that the amount
of the award which would result from the application of the Indiana Child Support
Guidelines is the correct amount of child support.” However, “[a] trial court may, in its
discretion, deviate from the presumptive amount specified by the guidelines if application
would result in an unjust award.” Cobb v. Cobb, 588 N.E.2d 571, 574 (Ind. Ct. App.
1992). In such a situation, the trial court “must set forth a written finding stating the
factual basis for the deviation.” Hamiter v. Torrence, 717 N.E.2d 1249, 1253 (Ind. Ct.
App. 1999) (citing Guideline 3(F)). We will affirm a trial court’s order of child support,
including an order modifying child support, unless the order is clearly erroneous.
McGinley-Ellis, 638 N.E.2d at 1252.
22
Here, the trial court had five child support worksheets before it—one submitted by
Father, one by Mother, one by the State, and two created by the trial court. Ex. 3;
Appellant’s App. p. 35-40. These worksheets provided for a range of weekly child
support obligations between $95, in the case of Father’s worksheet, to $278.77, as
provided by the first worksheet created by the trial court. Appellant’s App. p. 35, 39.
However, the trial court did not specifically adopt any of these child support worksheets.
Therefore, it appears that the trial court found that none of these worksheets provided a
just award of child support and chose to deviate accordingly.
As acknowledged by Father, one possible explanation for the trial court’s
deviation is that Mother had requested an award of at least $250 so that she could
maintain her current residence and meet other obligations. This explanation has some
support in the trial court’s order, which states in part: “[Mother] stated that when
[Father] was complying with the Court’s Order and paying $149 regular support plus
$100 towards the arrearage she was able to provide for the parties [sic] minor child. She
asked that support be temporarily modified to $250 per week.” Appellant’s App. p. 33.
In fixing an amount of child support, the trial court “must consider the children’s
needs and the parent’s general economic condition as it affects the parent’s ability to
financially provide for the children.” Elbert v. Elbert, 579 N.E.2d 102, 112 (Ind. Ct. App.
1991). Thus, to the extent that the trial court deviated from the presumptive child support
amount to arrive at a figure that would allow Mother to continue living in her home and
23
provide for the parties’ minor child to maintain a certain standard of living, we cannot say
that the trial court erred.
III. Incarceration for Contempt and Appropriateness of Bond for Future Support
Next, Father challenges the contempt finding and contends that the trial court
erred by ordering his incarceration for thirty days when at the time of the order he was
current on his support obligation. Father further contends that it was error for the trial
court to set a bond amount requiring Father to pay six months of his future support
obligation in advance.
We will reverse a trial court’s finding of contempt only if there is no evidence or
reasonable inferences supporting the finding. Cowart v. White, 711 N.E.2d 523, 531
(Ind. Ct. App. 1999). Additionally, it is well-settled that a trial court may use
incarceration as a contempt sanction for a parent’s failure to pay child support so long as
the parent has the financial ability to comply with the order and the delinquency is
willful. Pettit v. Pettit, 626 N.E.2d 444, 445 (Ind. 1993).
In the instant case, Mother presented evidence on her contempt petition on May
25, 2012, and the parties reconvened on June 14, 2012, for the trial court’s decision. At
that time, the trial court noted that Father had previously been found in contempt of court
three times for the failure to pay his child support timely and consistently but that no
coercive measures had ever been ordered against Father. Tr. p. 169-70. The trial court
further found that, despite Father’s claims otherwise, Father had the financial means to
pay support as ordered “because [he] had it for vacations and for other expenses that he
24
did pay rather than paying support.” Id. at 172. Accordingly, the trial court determined
that Father’s failure to pay was willful and wanton and that “without coercive measures
[Father] will not obey the Court’s order as it pertains to consistent payments of weekly
child support.” Appellant’s App. p. 44.
The trial court found Father in contempt of court for his failure to pay support
consistently from the time of the last contempt finding until the May 25, 2012 hearing
and ordered Father to serve thirty days in the Hamilton County Jail “to impress upon
[him] the importance of paying consistent weekly child support.” Id. The trial court also
ordered Father to post a $6070 bond “to take care of [Father’s] support obligations while
he is ramping up his new business.” Tr. p. 173.
Father contends that the trial court erred by finding him in contempt and ordering
him incarcerated because, among other things, Father presented evidence that he had
worked a second job, moved into a cheaper apartment, sold some of his assets, and was
considering filing bankruptcy. Appellant’s Br. p. 19. In other words, Father asks us to
reweigh the evidence regarding his financial ability to pay child support as ordered. This
we will not do. Moore v. Liggins, 685 N.E.2d 57, 65 (Ind. Ct. App. 1997). Sufficient
evidence existed to support the trial court’s contempt finding, and we will not set it aside.
Father also fails to persuade us that the trial court erred by failing to allow him to
purge his contempt via the support payments he made between the May 25, 2012 hearing
and the trial court’s pronouncement of its decision on June 14, 2012. In Marks v.
Tolliver, this Court emphasized that “the primary purpose of a civil contempt proceeding
25
is not to punish the contemnor but to coerce action for the benefit of the aggrieved party”
before reversing an order that called for a father’s incarceration at any future time that his
child support payments fell behind without an inquiry into his ability to pay at that time.
839 N.E.2d 703, 707-08 (Ind. Ct. App. 2005). The Marks Panel also stated, “[O]ne who
is held in civil contempt for failing to pay support should be ordered to pay the total
arrearage and given an opportunity to purge himself or herself of contempt by paying the
amount owed.” Id. at 707.
Although we acknowledge the policy rationale behind the above-quoted language,
we conclude that the present case is sufficiently distinguishable from Marks to warrant a
deviation from its strict application. Unlike in Marks, the trial court here did not order
Father’s incarceration at some unknown time in the future without inquiry into his ability
to pay at that time. Rather, extensive evidence was presented by both sides regarding
Father’s ability to pay, and the trial court found that Father had willfully disobeyed the
support order. Moreover, the trial court specifically stated that the purpose of its order
was to coerce future compliance from Father even though at the time of the order Father
was current on his support obligation.
Thus, it is apparent that Father was afforded numerous opportunities over a period
of several years to strictly comply with the child support order, and he was repeatedly
warned that his failure to do so could result in incarceration. Appellant’s App. p. 41-42,
85. Yet despite multiple findings of contempt, Father has never suffered any adverse
consequences. Id. Rather, Father has continued his pattern of accumulating arrearages
26
on his child support obligation. Id. at 42, 80-81. We have held that “[t]he regularity and
continuity of court decreed support payments are as important as the overall dollar
amount of those payments.” Matson v. Matson, 569 N.E.2d 732, 733 (Ind. Ct. App.
1991). For all these reasons, we find no error with the trial court’s decision not to allow
Father to once again avoid incarceration for his contempt.7
Father next contends that the trial court erred by ordering him to post a bond that
required him to pre-pay six months of future support. Father alleges that “[p]anels of this
court have consistently found that prospective payments . . . are considered gratuities and
have long held that ‘child support payments cannot be applied prospectively to support
not yet due at the time of the overpayment.’” Appellant’s Br. p. 21 (quoting Matson, 569
N.E.2d at 733).
Father’s argument fails to take into account Indiana Code sections 31-16-6-5 and
31-16-8-3, which specifically state that a trial court entering or modifying an order for
child support “may provide . . . for such security, bond, or other guarantee that is
satisfactory to the court to secure the obligation to make support payments.” These
statutes allow for trial courts to be creative in fashioning guarantees of future support
where it appears that a parent may not voluntarily pay support as ordered. See Griswold
7
The State concedes that because Father was not provided with a written rule to show cause and the
hearing at which Father was incarcerated was a compliance hearing rather than a contempt hearing, “[t]he
unorthodox procedure adopted by the trial court did not clearly insure that [Father] received due process.”
While these procedures are generally required before a trial court can hold a person in indirect contempt,
here we believe that strict compliance with these procedures was unnecessary in this case because Father
had actual knowledge of the contempt accusations against him and what could happen if he failed to
strictly comply with the support order. See In re Paternity of J.T.I., 875 N.E.2d 447, 450 (Ind. Ct. App.
2007).
27
v. Savage, 569 N.E.2d 970, 972-73 (Ind. Ct. App. 1991) (upholding a trial court’s order
requiring a parent who often fell behind on his support obligation to deposit $37,500
received from an inheritance into a trust account guaranteeing the payment of future
support, college expenses, and medical expenses until the child’s expected emancipation
at the age of twenty-one). As such, we find no error with the trial court’s requirement
that Father post a $6070 bond to guarantee that J.B.J. received support while Father was
growing his new sales territory.
IV. Attorney Fees
Finally, Father requests attorney fees. However, Father fails to support his request
with cogent argument or any citations to legal authority. Accordingly, Father has waived
this request. See Rendon v. Rendon, 692 N.E.2d 889, 898 n.7 (Ind. Ct. App. 1998)
(finding that a party waived her challenge to an award of attorney fees when she failed to
present a cogent argument or authority in support of her argument on appeal).
The judgment of the trial court is affirmed.
MAY, J., and MATHIAS, J., concur.
28