In the Paternity of: A.R. & P.H., By Next Friend, T.R. C.A.H. v. T.R. ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
FILED
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
Jul 06 2012, 9:24 am
judicata, collateral estoppel, or the law
of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRYAN L. CIYOU JULIE ANDREWS
Ciyou & Dixon, P.C. BRIAN K. ZOELLER
Indianapolis, Indiana SARAH T. STARKEY
Cohen & Malad, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE PATERNITY OF: A.R. & P.H., )
)
By Next Friend, T.R., )
)
C.A.H. , )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1111-JP-577
)
T.R., )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable Louis Rosenberg, Judge
The Honorable Marie Kern, Commissioner
Cause No. 49C01-1005-JP-20376
July 6, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
C.H. (“Father”) appeals the trial court’s calculation of child support owed to T.R.
(“Mother”). We affirm.
Issues
Father raises two issues, which we restate as:
I. whether the trial court properly calculated Mother’s
gross weekly income; and
II. whether the trial court’s order regarding payment of
child care costs is proper.
Facts
Father and Mother lived together in Father’s house, and their child, A.H.,1 was
born in May 2005. In 2007, A.H. began attending daycare at the Center for Young
Children (“CYC”). Eventually, the parties’ relationship deteriorated, and A.H. and
Mother, who was pregnant with Father’s child, moved out of Father’s residence in March
2009. P.H. was born in July 2009 and has cystic hygroma.
After his birth, P.H. attended daycare at Shalom, but Mother wanted to transition
him to CYC as soon as P.H. was old enough to attend CYC and as soon as there was a
spot available for him. CYC is more expensive than Shalom. A.H. was scheduled to
start kindergarten in the 2011-2012 school year with the YMCA providing before and
after school care.
Mother filed a paternity action in May 2010. The trial court appointed a Level II
Parenting Coordinator (“PC”). The parties agreed on custody and parenting time issues,
1
A.H.’s name was changed during these proceedings from A.R. to A.H.
2
but they could not reach an agreement on financial issues, including child support and
child care issues. Specifically, the parties disagreed on whether to include Mother’s
employment-related bonuses in her gross weekly income. The PC recommended that
P.H. attend CYC. The Father agreed that P.H. would attend CYC after a spot was
available for him, but Father argued that Mother should pay the extra cost of sending P.H.
to CYC.
After the final hearing, the trial court entered sua sponte findings of fact and
conclusions thereon. The trial court found that Mother’s gross weekly income was
$1,277.14 per week and that Father’s gross weekly income was $1,015.38. The trial
court declined to include Mother or Father’s bonuses in the calculation of their gross
weekly incomes. As for child care, the trial court ordered Father to pay a percentage of
child care costs to Mother as part of his child support. The trial court ordered that P.H.
attend CYC in the summer of 2011 or “as the facility has his spot open.” Appellant’s
App. p. 12. The trial court ordered the parties to recalculate child support when P.H.
transfers to CYC to include the increase in daycare costs. Specifically, the trial court
ordered the parties to “cooperate in modifying child support as set forth herein based on
Father’s increased parenting time with [P.H.], [P.H.’s] increased daycare and transition to
CYC.” Id. at 23. Father now appeals.
Analysis
Father’s arguments concern the amount of child support he was ordered to pay.
“A trial court’s calculation of child support is presumptively valid.” Young v. Young,
891 N.E.2d 1045, 1047 (Ind. 2008). A trial court’s decision regarding child support will
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be upheld unless the trial court has abused its discretion. Sexton v. Sedlak, 946 N.E.2d
1177, 1183 (Ind. Ct. App. 2011), trans. denied. A trial court abuses its discretion when
its decision is clearly against the logic and the effect of the facts and circumstances
before the court or if the court has misinterpreted the law. Id. Additionally, our standard
of review is governed by the trial court’s decision in this case to enter findings of fact and
conclusions of law. Id. In such instances, we “shall not set aside the findings or
judgment unless clearly erroneous, and due regard shall be given to the opportunity of the
trial court to judge the credibility of witnesses.” Id. (quoting Ind. Trial Rule 52(A)). It
appears that the trial court issued the findings and conclusions sua sponte, and where the
trial court enters findings and conclusions sua sponte, the specific findings control only as
to the issues they cover. Id. A general judgment standard applies to any issue upon
which the trial court has not entered findings, and we may affirm a general judgment on
any theory supported by the evidence adduced at trial. Id.I. Bonuses
Father argues that the trial court erred when it excluded Mother’s bonuses from
her gross weekly income. The Indiana Child Support Guidelines define gross weekly
income, which is an element of the child support calculation, as:
actual Weekly Gross Income of the parent if employed to full
capacity, potential income if unemployed or underemployed,
and imputed income based upon “in-kind” benefits. Weekly
Gross Income of each parent includes income from any
source, except as excluded below, and includes, but is not
limited to, income from . . . bonuses . . . .
Child Support G. 3(A)(1). The Commentary to the Guidelines provides:
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There are numerous forms of income that are irregular or
nonguaranteed, which cause difficulty in accurately
determining the gross income of a party. Overtime,
commissions, bonuses, periodic partnership distributions,
voluntary extra work and extra hours worked by a
professional are all illustrations, but far from an all-inclusive
list, of such items. Each is includable in the total income
approach taken by the Guidelines, but each is also very fact-
sensitive.
Each of the above items is sensitive to downturns in the
economy. The fact that overtime, for example, has been
consistent for three (3) years does not guarantee that it will
continue in a poor economy. Further, it is not the intent of the
Guidelines to require a party who has worked sixty (60) hour
weeks to continue doing so indefinitely just to meet a support
obligation that is based on that higher level of earnings. Care
should be taken to set support based on dependable income,
while at the same time providing children with the support to
which they are entitled.
When the court determines that it is not appropriate to include
irregular income in the determination of the child support
obligation, the court should express its reasons. When the
court determines that it is appropriate to include irregular
income, an equitable method of treating such income may be
to require the obligor to pay a fixed percentage of overtime,
bonuses, etc., in child support on a periodic but
predetermined basis (weekly, bi-weekly, monthly, quarterly)
rather than by the process of determining the average of the
irregular income by past history and including it in the
obligor’s gross income calculation.
Child Supp. G. 3(A), cmt. (2)(b).
At the final hearing, Father argued that Mother’s employment bonuses should be
included in her gross weekly income. Mother received a bonus of $6,396.68 in 2010 and
a bonus of $7,886.00 in 2011. The bonuses are performance based and are not
guaranteed. The trial court here determined that those bonuses and future bonuses should
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not be included in the calculation of Mother’s income. In support of its determination to
exclude the bonuses, the trial court found:
86. The Court bases this decision on the fact that Father
benefited from his family paying his attorney fees in
this litigation in the amount of approximately $12,000
as of the last day of testimony, and he received bonus
income as evidenced in prior hearings.
87. After considering testimony and case law, the Court
declines to order either party to pay the other a
percentage of their future bonus incomes for the
following reasons:
a. Father failed to show the Court that he had an
economic need for additional financial
assistance while exercising his parenting time.
The Court notes that Father has paid his car
loan in full providing him with more disposable
income.
b. The children will benefit from the receipt of
bonus income by both parents in their
respective homes.
c. Mother has demonstrated that it would be
inherently unjust if the Court were to order her
to pay a percentage of her bonus income to
Father as he effectively would be contributing
an extremely minimal amount of support for the
children.
Appellant’s App. pp. 26-27. The trial court concluded that “Father is not entitled to
Mother’s bonus income for 2009 and 2010 as he too received bonus income and he
received at least $12,000 from his family during this period to pay for his litigation
expenses in this matter.” Id. at 34. The trial court then ordered: “Each party shall retain
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their bonuses received and neither party shall receive a portion of the other’s bonus.” Id.
at 36.
According to Father, the trial court’s findings demonstrate “no valid legal basis for
deviation.” Appellant’s Br. p. 13. Father challenges the trial court’s Finding 87(a), (b),
and (c), but Father does not challenge the trial court’s use of Father’s bonuses and
payment of his attorney fees by his family as a basis for the deviation. Although Mother
received bonuses, Father also apparently received bonuses through his employment.
Additionally, Father’s family paid at least $12,000 in attorney fees for him. Given the
parties’ similar financial situations and these factors, the trial court did not err when it
determined that inclusion of Mother’s bonuses in her gross weekly income would be
unjust. We cannot say that the trial court’s determination to exclude both parties’
bonuses from their gross weekly income is clearly erroneous.
II. Child Care
Next, Father argues that the trial court’s order regarding payment of child care
costs is erroneous. The Indiana Child Support Guidelines address child care costs and
provide:
Child care costs incurred due to employment or job
search of both parent(s) should be added to the basic
obligation. It includes the separate cost of a sitter, day care, or
like care of a child or children while the parent works or
actively seeks employment. Such child care costs must be
reasonable and should not exceed the level required to
provide quality care for the children. Continuity of child care
should be considered. Child care costs required for active job
searches are allowable on the same basis as costs required in
connection with employment.
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The parent who contracts for the child care shall be
responsible for the payment to the provider of the child care.
Child Supp. G. 3(E)(1). The Commentary provides:
One of the additions to the basic child support
obligation is a reasonable child care expense incurred due to
employment, or an attempt to find employment. This amount
is added to the basic child support obligation in arriving at the
total child support obligation.
Work-related child care expense is an income-
producing expense of the parent. Presumably, if the family
remained intact, the parents would treat child care as a
necessary cost of the family attributable to the children when
both parents work. Therefore, the expense is one that is
incurred for the benefit of the child(ren) which the parents
should share.
Child Supp. G. 3(E), cmt. 1.
First, Father argues that he simply does not have enough money and that CYC is
not “affordable/reasonable given the parties’ finances.” Appellant’s Br. p. 18. The trial
court concluded that the “daycare/preschool costs outlined by Mother are reasonable and
should be shared by both parties as the care provides consistency, stability and continuity
for the children and this is in the best interests of the children.” Appellant’s App. p. 30.
We note that, at the start of the hearing on these matters, the parties stipulated as to
several items, including that P.H. would attend CYC. Father objected only to paying the
increased amount of daycare. See Tr. pp. 3-4. “A party cannot change its theory and on
appeal argue an issue that was not properly presented to the trial court.” Carmichael v.
Siegel, 754 N.E.2d 619, 634 (Ind. Ct. App. 2001). Given his stipulation, Father cannot
now argue that the trial court erred by ordering that P.H. attend CYC.
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As for the increased cost of CYC, Mother presented evidence that the weekly
difference for Father between CYC and Shalom was only $24.33 for CYC Weeschool,
$14.60 for CYC preschool, and $9.52 for CYC Pre-K. Father testified that cheaper
daycare options were available, but he presented no evidence regarding those options.
Further, A.H. was scheduled to start kindergarten in the 2011-2012 school year, which
presumably would significantly reduced child care costs for her. Given the evidence
presented, we cannot say that the costs associated with using CYC are unreasonable.
Father also takes issue with the trial court’s Findings 70 through 73, which
provide:
70. A Level II Parenting Coordinator Order was
approved on December 6, 2010.
71. The parties submitted the issue of [P.H.’s] daycare to
the PC and a binding recommendation was presented
to the Court on or about April 8, 2011.
72. Pursuant to the PC order, if either parent objects to the
binding recommendation, that party shall file a written
motion requesting a hearing within ten (10) days from
the recommendation being filed with the Court.
73. Father failed to provide a written objection.
Appellant’s App. p. 24. Father argues that he did not waive his objection to P.H.
attending CYC by failing to file an objection to the PC’s recommendation. Regardless of
Father’s failure to object to the PC recommendation, Father cannot now argue that he
objects to P.H. attending CYC because he stipulated at the trial that P.H. would attend
CYC.
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Finally, Father takes issue with the trial court’s Findings 75 and 76, which
provide:
75. The parties shall recalculate child support when [P.H.]
transfers to CYC to include the increase in daycare.
76. The parties shall pay their income shares toward any
work related daycare for [A.H.] that is needed as a
result of her attending a year-round school beginning
in August 2011 that exceeds the amount calculated for
purposes of establishing support in January 11, 2011.
Appellant’s App. pp. 24-25. The trial court concluded that P.H. would attend CYC and
“the parties shall pay their income shares toward the cost. The cost shall be calculated
into the support worksheet when modified.” Id. at 31. The trial court ordered the parties
to “recalculate child support as set forth above in the Court’s findings when Father’s
parenting time increases with [P.H.] and when [P.H.] transitions to CYC daycare.” Id. at
32. The trial court also ordered the parties to “cooperate in modifying child support as
set forth herein based on Father’s increased parenting time with [P.H.], [P.H.’s] increased
daycare and transition to CYC.” Id. at 35.
Father contends that modification of child support is governed by Indiana Code
Section 31-14-11-82 and that there is no indication the changes ordered by the trial court
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Indiana Code Section 31-14-11-8 provides:
A support order may be modified or revoked upon a showing:
(1) of a substantial change in circumstances that makes the terms
unreasonable; or
(2) that:
(A) a person has been ordered to pay an amount in child
support that differs by more than twenty percent (20%)
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would meet the statutory requirements. 3 Father argues that the trial court could not order
an automatic prospective change in the child support.4
We note that, in addition to ordering the parties to cooperate to modify the child
support as a result of child care cost changes, the trial court also ordered the parties to
cooperate in modifying the child support as a result of Father’s increased parenting time
with P.H. However, Father does not challenge the automatic prospective changes that
would result from the increased parenting time and decreased child support. Child care
costs for A.H. would also decrease as a result of her attending kindergarten, but Father
does not challenge those prospective changes either.
We addressed a similar situation in R.R.F. v. L.L.F., 956 N.E.2d 1135, 1141-42
(Ind. Ct. App. 2011). There, the trial court ordered the father to reimburse the mother
35.93% of any tax credit subsidy he receives as a result of paying their son’s college
expenses and the mother to reimburse the father 64.07% of any tax credit subsidy she
received. On appeal, the father argued that “the dissolution court’s order on remand
from the amount that would be ordered by applying the
child support guidelines; and
(B) the support order requested to be modified or revoked
was issued at least twelve (12) months before the
petition requesting modification was filed.
3
Father also argues that the prospective changes violate Article 1, Section 12 of the Indiana Constitution,
but Father cites no authority for that proposition and provides no analysis of the issue. As a result, the
argument is waived. See Ind. Appellate Rule 46(A)(8)(a) (requiring citation to authority and cogent
reasoning in an appellant’s brief).
4
Father argues that “Indiana law has long prohibited prospective and automatic modifications of child
support . . . .” Appellant’s Br. p. 23. In support of this argument, Father cites Brown v. Brown, 581
N.E.2d 1260, 1264 (Ind. Ct. App. 1991). However, in Brown, this court held: “Indiana law does not
prohibit the issuance of prospective support orders in marriage dissolution cases.” Brown, 581 N.E.2d at
1264.
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amounts to an automatic, year-by-year modification of the parties’ relative contributions
to E.F.’s college expenses, and that such an automatic modification is improper.” R.R.F.,
956 N.E.2d at 1141-42. We disagreed and held:
Although the actual dollar amount payable by Mother to
Father (and vice versa) pursuant to the dissolution court’s
order on remand may vary from year to year based on, among
other things, changes in the parties’ income, E.F.’s college
enrollment status, and amendments to the federal tax laws, the
percentage of the tax credit owed will remain the same. That
is, unless the order is amended, Mother will always be
required to reimburse Father for 64.07% of any applicable tax
credit subsidy she receives, and Father will always be
required to reimburse Mother for 35.93% of any applicable
tax credit subsidy he receives. Thus, there is no automatic
modification of the parties’ contributions to E.F.’s college
expenses.
Id. at 1142.
Additionally, our supreme court held in Lambert v. Lambert, 861 N.E.2d 1176,
1182 (Ind. 2007), that a prospective child support order was proper. There, the court held
that a trial court “could prospectively order that child support return to the pre-
incarceration level upon a prisoner’s release because following release, the parent is
theoretically able to return to that wage level.” Lambert, 861 N.E.2d at 1182. The court
noted that “[s]uch an order has multiple benefits.” Id. “First, it encourages non-custodial
parents to track carefully their support obligation, as it would require an incarcerated
parent to seek modification of the order upon their release.” Id. “Second, it relieves the
custodial parent from the added burden of tracking the expected release date of the
obligor and filing for modification upon that release.” Id.
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Similarly, here, the trial court was attempting to relieve the parties of the burden of
filing repeated motions for modification. Although the actual dollar amount payable by
Father may vary due to changes in child care costs, the percentage would remain a
function of their income shares. At times the arrangement will result in an increase in
Father’s child support, but at other times, Father’s child support obligation will decrease.
Under these circumstances, we cannot say that the trial court erred.5 See also Kyle v.
Kyle, 582 N.E.2d 842, 847-48 (Ind. Ct. App. 1991) (holding that the trial court did not
abuse its discretion by ordering the father to pay a share of work-related summer child
care “provided for outside the guideline computation” where the cost of the care was
unknown at the time of the trial), trans. denied.
Conclusion
The trial court’s determination of Mother’s gross weekly income is not clearly
erroneous, and the trial court’s order concerning child care costs is not clearly erroneous.
We affirm.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
5
Father also raises a concern regarding his income withholding order and payments to the Indiana State
Central Collection Unit. According to Father, there is no way for the parties to automatically change the
income withholding order. We note that the trial court ordered the parties to “cooperate in modifying
child support.” Appellant’s App. p. 35. Clearly, the parties could cooperate in determining the
appropriate child support based on the changes in child care costs and parenting time and submit those
proposed changes to the trial court for approval and a new income withholding order.
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