M.B. v. A.V. ( 2014 )

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 Feb 06 2014, 9:01 am
judicata, collateral estoppel, or the law
of the case.
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
M.B. STEVEN F. FILLENWARTH
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
M.B., )
)
Appellant, )
)
vs. ) No. 41A04-1305-JP-257
)
A.V., )
)
Appellee. )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable Kevin M. Barton, Judge
Cause No. 41D01-9610-JP-3
February 6, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
M.B. (“Mother”) appeals the trial court’s modification of child support owed by
A.V. (“Father”). We affirm.
Issues
Mother raises four issues, which we consolidate and restate as:
I. whether the trial court properly modified the weekly
child support owed by Father;
II. whether the trial court properly awarded the dependent
tax exemption to Father for 2012 and 2013; and
III. whether the trial court properly refused to order Father
to reimburse Mother for the cost of summer camps.
Facts
Mother and Father have one child, C.V., who was born in December 1995.
Paternity was established in 1997, and Mother was awarded sole legal and physical
custody. At that time, Father had a weekly gross income of $3,187.00. Mother had a
weekly gross income of $565.00. Father was ordered to pay child support of $346.00 per
week. The trial court also ordered that Father’s child support obligation be $311.00 per
week beginning January 9, 1998. Mother was awarded the ability to claim C.V. as a
dependent for tax purposes. The trial court ordered Father to pay 85% of uninsured
medical expenses in excess of $1,008.00. In 2001, C.V. was diagnosed with juvenile
diabetes, and she requires significant medical care.
In March 2011, Father filed a petition for modification of his child support in part
because his income had substantially declined. In August 2011, Mother also requested a
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modification for child support to include secondary school educational expenses, health
insurance, transportation expenses, and a cell phone for C.V. A hearing was held on
January 10, 2013.
Evidence was presented that Father has an interest in five entities that own or
manage pizza restaurants. Father’s businesses experienced a significant downturn in
2011. Father’s most profitable restaurant, which was located in the City Market in
downtown Indianapolis, was closed in April 2011. He has filed a lawsuit against the City
of Indianapolis as a result of the closing, and that litigation is pending. Another of the
restaurants at the Adrian Mall closed in April 2012. Father eventually went to work for
his brother at a restaurant in Franklin. In 2011, Father’s income was $20,018.00, and his
adjusted gross income was $7,597.00. His gross income was $252.00 a week in 2011. In
2012, Father’s income was $47,586.00, or $915.00 per week.
The trial court entered findings of fact and conclusions thereon. The trial court
found that Father had “suffered a substantial reduction in income since 1997.” App. p.
28. After adjustments for excessive depreciation and unemployment benefits, the trial
court concluded that Father’s weekly gross income for 2011 was $357.00 and that his
weekly gross income for 2012 was $1,200.00. The trial court modified Father’s child
support obligation to $57.00 per week for March 28, 2011, through December 31, 2011,
and $166.00 per week beginning January 1, 2012. Father also requested a finding that he
had paid excess child support, but the trial court noted that no evidence regarding the
payment of child support between January 2, 2001, and March 28, 2011, was presented.
Consequently, the trial court was unable to determine whether Father overpaid child
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support. The trial court also ordered Father to pay 46% of C.V.’s tuition for her private
high school and to reimburse Mother for her prior payments of the tuition. The trial court
denied Mother’s request for Father to contribute to transportation and cell phone
expenses. The trial court ordered Father to pay $19,326.20 in uninsured medical
expenses. As for the tax exemption, the trial court ordered that Father was entitled to the
tax exemption for 2012, 2013, and 2014.
Mother and Father each filed motions to correct error. The trial court then entered
an order partially granting the motions. The trial court ordered that Mother was entitled
to the tax exemption for 2014. The trial court also concluded that the summer diabetes
camps that C.V. attended were not medical expenses and removed those costs from the
list of uninsured medical expenses. The trial court then ordered Father to pay $15,628.70
in uninsured medical expenses. Mother now appeals.
Analysis
Mother appeals the trial court’s calculation of child support. “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 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
thereon. Id. In such instances, we “shall not set aside the findings or judgment unless
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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. Weekly Child Support
Mother argues that the trial court erred by modifying Father’s child support to
$57.00 per week for March 28, 2011, to December 31, 2011, and to $166.00 per week
effective January 1, 2012. At the time the petitions were filed and the trial court issued
its orders, the modification of a support order in the context of a paternity action was
governed by Indiana Code Section 31-14-11-8, which provided:
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%) 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.
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This statute was later repealed by P.L. 207-2013, §§ 24-40, effective May 9, 2013.1
Mother’s argument centers on the trial court’s calculation of Father’s weekly gross
income. Mother argues that, despite the decreases in Father’s income in 2011 and 2012,
Father still had substantial assets. Mother points out that, in 2011, Father sold
$50,937.00 of assets “presumably to support his own obligations,” that Father’s house
does not have a mortgage, and that Father contributed $233,000.00 to his failed
restaurant. Appellant’s Br. p. 6.
The Indiana Child Support Guidelines define “weekly gross income” as:
1
Currently, the modification of a child support order in the context of paternity is governed by Indiana
Code Section 31-14-11-2.3, which provides: “A child support order issued under this chapter is subject to
the provisions in IC 31-16-6 through IC 31-16-13.” Indiana Code Section 31-16-8-1 provides:
(a) Provisions of an order with respect to child support or an order
for maintenance (ordered under IC 31-16-7-1 or IC 31-1-11.5-
9(c) before their repeal) may be modified or revoked.
(b) Except as provided in section 2 of this chapter, modification may
be made only:
(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.
(c) Modification under this section is subject to IC 31-25-4-17(a)(6).
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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 salaries, wages, commissions,
bonuses, overtime, partnership distributions, dividends,
severance pay, pensions, interest, trust income, annuities,
capital gains, social security benefits, workmen’s
compensation benefits, unemployment insurance benefits,
disability insurance benefits, gifts, inheritance, prizes, and
alimony or maintenance received from other marriages.
Ind. Child Support Guideline 3(A). With respect to Father’s income in 2011 and 2012,
the trial court found:
11. Father did not directly explain how he was able to be
current on his financial obligations notwithstanding his
limited income. Mr. McClary, an accountant for
Father and the corporations in which Father owns an
interest, testified that he has observed that his clients in
the accounting practice are using the proceeds of
liquidated assets to pay for current living expenses as a
result of the current economic recession so as to avoid
a loss of living standard, however, he offered no
personal knowledge of Father’s situation. Father’s
2011 federal income tax return showed that Father
reported $50,937.00 from the sale of assets.
*****
13. Mr. McCleary [sic] testified the [sic] one of the
corporations in which Father owns an interest, Enzo
14, sustained a significant loss in 2011 and that there
were “substantial” capital contributions to Enzo 14 to
fund the losses.
14. Mother notes that Mr. McClary’s computations are
based upon the bookkeeping entries made by an
employee of the corporations in which Father owns an
interest, who is related to Father. However, no
evidence was presented that would show the figures to
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be incorrect. Mr. McClary testified that he had found
no reason not to trust the figures. Mother also notes
that a sizeable portion of the revenue in the restaurant
business comes from cash sales, which raises the
possibility of under reporting income. However, no
evidence was presented that income had been under
reported.
15. From the evidence presented, the Court concludes that
Father has suffered a substantial reduction in income
since 1997.
App. pp. 28-29. The trial court then increased Father’s reported income by excluding
fifty percent of the depreciation that had been claimed on his tax returns. Ultimately, the
trial court concluded that Father’s weekly gross income for 2011 was $357.00 and that
Father’s weekly gross income for 2012 was $1,200.00. Mother disputed this finding in
her motion to correct error, and the trial court again addressed the issue. The trial court
did not find “that evidence was submitted to the Court at hearing of the value of
[Father’s] financial resources upon which the Court could base an order.” Id. at 38.
Although Mother claims that Father still had substantial assets despite his
decreased income, Mother presented no evidence to support these claims. Innuendo is
simply not enough for this court to say that the trial court’s findings were clearly
erroneous. Further, by the parties’ agreement, Father did not testify at the hearing. His
attorney merely gave a summary of Father’s circumstances. Mother agreed to this
procedure and, consequently, was unable to cross-examine Father regarding his assets.
Moreover, Mother did not submit a proposed child support order worksheet. 2 Under
2
Mother also argues that the modification “immediately created an overpayment of child support owed to
Father by Mother of approximately $15,169.00.” Appellant’s Br. p. 10. However, the trial court
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these circumstances, Mother has failed to demonstrate that the trial court’s findings and
conclusions regarding Father’s weekly gross income for 2011 and 2012 are clearly
erroneous.
II. Tax Exemption
Next, Mother argues that the trial court erred by awarding the tax exemption to
Father for 2012 and 2013. The Indiana Child Support Guidelines do “not take into
consideration the awarding of the income tax exemption. Instead, it is recommended that
each case be reviewed on an individual basis and that a decision be made in the context
of each case.” Child Supp. G. 9. “The noncustodial parent must demonstrate the tax
consequences to each parent as a result of releasing the exemption and how the release
would benefit the child(ren).” Id. In determining when to order a release of exemptions,
the Guideline recommends that, at minimum, the following factors be considered:
(1) the value of the exemption at the marginal tax rate of
each parent;
(2) the income of each parent;
(3) the age of the child(ren) and how long the exemption
will be available;
(4) the percentage of the cost of supporting the child(ren)
borne by each parent;
(5) the financial aid benefit for post-secondary education
for the child(ren); and
specifically noted that no evidence regarding the payment of child support between January 2, 2001, and
March 28, 2011, was presented. Consequently, the trial court did not find that Father overpaid child
support.
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(6) the financial burden assumed by each parent under the
property settlement in the case.
Id.; see also Ind. Code § 31-16-6-1.5.
Here, the trial court noted that Mother had received the tax exemption from 1997
through 2011, “notwithstanding Father’s substantially higher income as determined from
the 1997 Findings.” App. p. 33. Consequently, the trial court awarded the tax exemption
to Father for 2012, 2013, and 2014. However, upon reconsideration after the parties filed
motions to correct error, the trial court found:
Upon reassessment of the provisions of Indiana Code 31-16-
[6]-1.5, the Court determines that it gave undue weight to the
past application under the 1997 Order and insufficient
consideration to other factors identified under Indiana Code
31-16-[6]-1.5. Consequently, the Court does find that the
prospective award of the tax exemption should be divided
more closely in accordance with the current income as
opposed to the past income.
Id. at 39. The trial court then gave Mother the tax exemption for 2014.
According to Mother, the trial court erred by awarding Father the tax exemption
for 2012 and 2013. Mother contends that she should have been awarded the exemptions
because Father has little contact with C.V. and Mother has previously paid tuition and
uninsured health care expenses without help from Father. Although Mother asserts that
the factors weigh “heavily” in her favor, she makes no analysis of any individual factors.
Appellant’s Br. p. 12. The record shows that Mother claimed the tax exemption for all
previous years and was granted the tax exemption for 2014. Father was only granted the
tax exemption for 2012 and 2013. Without an analysis of the relevant factors, we simply
cannot say Mother has shown that the trial court’s conclusion was clearly erroneous.
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III. Summer Camps
Mother next argues that the trial court erred by excluding C.V.’s summer diabetes
camps from the calculation of uninsured medical expenses. The trial court noted that,
under Guideline 8 of the Indiana Child Support Guidelines, summer camps “are treated as
an extraordinary educational expense which are not included in a base child support
obligation.” App. pp. 40-41. Because Father has not been ordered to pay extraordinary
expenses, the trial court found that, in order for Father to be “subject to contribution for
such expenses, the expenses must qualify as a medical expense.” Id. at 41. However, the
trial court did not “find that there is a preponderance of the evidence that the primary
purpose of the camps is medical or informational.” Id. Rather, the documents submitted
during the hearing indicated that “the camps are for children with diabetes and have
medical support available for the children” but “the purpose of the camps is recreational.”
Id. Consequently, the trial court concluded that the camps were extraordinary expenses
rather than uninsured medical expenses and that Father was not required to contribute to
those expenses.
On appeal, Mother argues Father failed to present evidence that the camps were
not medical expenses. However, we held in Tigner v. Tigner, 878 N.E.2d 324, 328-29
(Ind. Ct. App. 2007), that when uninsured medical expenses are challenged, the party
seeking the contribution has the burden of showing that the expenses were reasonable and
necessary. Consequently, Mother had the burden of demonstrating that the summer
camps qualified as medical expenses, and Mother presented no evidence that the purpose
of the camps was medical rather than recreational.
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Mother also argues that, regardless of whether the camps were medical expenses,
Father should bear the burden of part of the expenses. Although it might be equitable for
Father to pay for a portion of the summer camps, we are required to follow the Child
Support Rules and Guidelines and the relevant statutes. Mother cites no authority to
demonstrate that Father is required to contribute to extraordinary expenses. We cannot
say that the trial court erred when it denied Mother’s request that Father contribute to the
cost of the summer camps.
Conclusion
Mother has failed to demonstrate that the trial court’s child support order is clearly
erroneous, that the trial court erred by granting the tax exemption to Father for 2012 and
2013, or that the trial court erred by denying her request that Father pay for a portion of
the summer camps. We affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
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