Matthew Banks Ashworth v. Kathryn (Ashworth) Ehrgott , 2013 Ind. App. LEXIS 38 ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
KEVIN A. HOOVER DENNIS F. McCROSSON
Hill Fulwider, P.C. McCrosson & Associates, P.C.
Indianapolis, Indiana Indianapolis, Indiana
FILED
Jan 30 2013, 9:41 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
MATTHEW BANKS ASHWORTH, )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1205-DR-412
)
KATHRYN (ASHWORTH) EHRGOTT, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patrick L. McCarty, Judge
Cause No. 49D03-0902-DR-5731
January 30, 2013
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, Matthew Banks Ashworth (Father), appeals the trial
court’s Order on modification of child support in favor of Appellee-Petitioner, Kathryn
(Ashworth) Ehrgott (Mother).
We affirm in part, reverse in part, and remand.
ISSUES
Father raises six issues on appeal, which we consolidate and restate as the
following three issues:
(1) Whether the trial court abused its discretion in calculating Father’s 2012 and
subsequent child support obligation and income withholding order;
(2) Whether the trial court abused its discretion in determining Father’s additional
child support obligation based on his 2010, 2011, 2012 bonuses and future
irregular income; and
(3) Whether the trial court erred by declining to credit Father for his overpaid child
support obligations.
FACTS AND PROCEDURAL HISTORY
This is the second appeal in this contentious child support dispute. See Ashworth
v. Ehrgott, 934 N.E.2d 152 (Ind. Ct. App. 2010). Because some of the facts in the prior
appeal are relevant to the present dispute, we include them here. Father and Mother were
married in 1999 and have two minor children. On October 31, 2006, following the
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parties’ agreement, the Chancery Court for Knox County, Tennessee dissolved their
marriage. Mother was awarded sole legal and physical custody under the divorce decree.
The divorce decree also addressed Father’s alimony and child support obligations.
Commencing November 1, 2006, Father was to pay Mother alimony of $306,000 in
monthly installments of $1,500. However, the first nineteen months of installments were
to be paid at $1,000 per month and the deferred portion of $500 would incur interest at
8%. The total deferred amount of $9,500, plus interest, would be due on or before
December 31, 2008. The alimony obligation was deemed non-dischargeable in
bankruptcy and terminable only on Mother’s death or full payment with interest.
Alimony payments were tax deductible by Father, while Mother was required to report
the alimony as income on her state and federal income tax returns. Child support was
calculated at $2,500 per month. This amount was to be recalculated in May 2008
pursuant to the Tennessee Child Support Guidelines. In May 2007, a Tennessee court
entered an order clarifying that Father’s $2,500 monthly child support obligation
represented an upward deviation of $650 in favor of Mother and would be recalculated in
May 2008.
In 2007, Mother remarried and relocated to Indiana while Father took a job with
U.S. Bank and relocated to California. In June 2008, Father paid Mother $1,160 per
month in child support rather than the $2,500 specified the decree. In February 2009,
Mother registered the Tennessee child support order in the Marion County Superior
Court. In March 2009, the trial court entered a child support income withholding order
3
directing Father’s employer to withhold $576.92 per week, which approximated the
$2,500 monthly child support amount specified in the divorce decree. On April 14, 2009,
Father filed an emergency petition to stay the income withholding order, alleging “that
the $2,500.00 per month amount of child support was only ordered to be paid until May
of 2008, at which time is [sic] was recalculated.” Id. Father also alleged that his living
expenses in California and $1,500 monthly alimony payment caused him significant
hardship.
On June 2, 2009, Father filed a verified motion to modify his child support
obligation and provided his financial declaration which listed his 2009 annual income as
$133,500 or $2,292 per week. On June 11, 2009, the trial court modified Father’s child
support obligation to $500.75 per week. After including the children’s educational
expenses as additional child support, the trial court entered a child support income
withholding order to U.S. Bank in the amount of $731.00 per week, which it later revised
to $612.10 per week.
Thereafter, Father appealed, challenging the trial court’s calculation of his child
support obligation and raising numerous other issues. Two issues relevant to this appeal
were whether the trial court erred by deducting alimony payments from Father’s gross
income for the purpose of calculating child support and by declining to reduce his child
support obligation based on his tax bracket. Regarding the first issue, we held that
alimony payments were not to be included in determining Father’s gross income and
remanded to the trial court for recalculation of the weekly gross income. Id. at 161. On
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the second issue, we affirmed the trial court’s calculation of the disparate tax rate
between Indiana and California as 10.72%. Id. at 162-63. However, we remanded to the
trial court to calculate credits against Father’s child support for his payment of health
insurance premiums, preschool expenses, and private school tuition. Id. at 162, 164, 166.
On December 7, 2010, following remand, Mother filed her verified petition for
modification of child support. Her verified petition alleged that Father was $27,000 in
arrears on his alimony obligation and as a result “should not be allowed an adjustment on
his income for child support calculation purposes” nor should alimony be deemed
received as part of her income for child support calculation purposes. (Appellant’s App.
p. 22). On December 22, 2010, Mother filed a pre-hearing submission which included
her proposed child support obligation worksheet (CSOW) and verified financial
declaration. While both the pre-hearing submission and the verified financial declaration
stated that Mother’s wages for 2010 were $510 per week, exclusive of alimony, Mother’s
CSOW relied upon the parties’ 2009 figures, listing Father’s weekly gross income as
$2,292 and Mother’s as zero, resulting in Father’s weekly child support obligation of
$422.
That same day, the trial court held a hearing on Mother’s verified petition and
issued its Order on modification. The CCS records the following jacket entry:
COURT Approves Attorney Conference Held. Argument Heard. Income
withholding order of $422.00/Week does not reflect payment of spousal
maintance [sic] therefore, not deductiable [sic] to his income or income to
her.
5
(Appellant’s App. p. 7). Thereafter, Mother appeared in Father’s bankruptcy proceedings
as a creditor. She opposed his attempt to discharge the alimony obligation in bankruptcy.
On October 27, 2011, Mother’s counsel deposed Father and he revealed that he received
two bonuses from his employer in 2010 and 2011.
On December 12, 2011, Mother filed another verified petition for modification of
child support. She alleged that the last child support modification order occurred in
December 22, 2010 and that Father’s deposition testimony in the bankruptcy action
revealed 2010 and 2011 bonus payments totaling $180,000, which he did not disclose to
her or the trial court during the 2010 child support modification proceedings. On April 4,
2012, the trial court held a hearing on the modification petition. That same day, Father
filed his verified financial declaration, which listed his 2011 salary as $141,000 and 2011
bonus as $117,000. In his testimony, Father admitted that he did not disclose his 2010
bonus as part of calculating the child support modification in December 2010. Father
also admitted that contrary to his verified financial declaration he received a raise,
making his salary $146,000, and a bonus of $100,600 in February and March 2012.
On April 24, 2012, the trial court issued its Order. It found that Father had failed
to disclose his 2010 and 2012 bonuses and that along with the 2011 bonus, these
constituted irregular income under the Ind. Child Support Guidelines. Further, the trial
court found that Father’s failure to disclose the 2010 and 2012 bonuses amounted to a
knowing concealment in violation of Ind. Trial Rules 26(E)(2) and (3) as well as Marion
County Family Law Rule 504 governing financial declarations. By failing to “report all
6
of his income at the date of [the] December 22, 2010 Order,” the trial court concluded
that Father’s conduct constituted a knowing concealment in violation of T.R. 26(E)(2).
(Appellant’s App. p. 15).
The trial court calculated Father’s child support obligation commencing April 4,
2012 in the following manner. First, it determined Father’s regular salary for 2012 to be
$141,000. Second, it reduced this amount by $18,000, which constituted Father’s annual
alimony obligation under the divorce decree and which, pursuant to this court’s decision
in Ashworth, could not be included in his salary. The remaining amount of $123,000 was
then reduced by what the trial court determined was the state tax differential of 5.7%
1
(.9475) between Indiana and California, resulting in Father’s 2012 salary for child
support purposes as $115,927.50 or $2,229.38 per week. Mother’s income for child
support purposes was calculated as $733 per week, which consisted of $385 in weekly
wages and $348 in weekly alimony payments under the divorce decree. Listing these
amounts on a CSOW attached to its April 24, 2010 Order, the trial court ordered Father’s
weekly child support to be $339.46, commencing April 4, 2012. However, an income
withholding order issued contemporaneously with the April 24, 2012 Order listed the
amount to be withheld as $348.
1
Although Ashworth upheld the trial court’s calculation of state tax differential of 10.72%, Father testified at the
April 4, 2012 hearing that his 2010 combined California federal and state tax obligation was 27.63% of his adjusted
gross income. Applying this amount to the Indiana presumed rate of 21.88%, resulted in a state tax differential of
5.7%. The trial court adopted this amount in its April 24, 2012 Order and neither party challenges it on appeal.
7
The trial court also considered the effect of Father’s failure to disclose his
bonuses. It concluded that Father failed to report all of his income at the date of the
December 22, 2010 Order. Noting that Mother had not moved under T.R. 60(B) to set
aside the December 22, 2010 Order, the trial court invoked its equitable jurisdiction to
grant relief. Specifically, the trial court concluded that Father’s failure to disclose the
bonus payments constituted fraud on the court.
Cognizant that neither the Tennessee decree nor any subsequent child support
modification had addressed Father’s irregular income, the trial court calculated his
additional child support obligation by “allocating a fixed percentage” of Father’s bonus
payments to child support. (Appellant’s App. p. 7). The trial court relied on the Indiana
Child Support Guideline 3(A), comment 2(b) to calculate an irregular income ratio.
Referring to the December 22, 2010 Order and its attached CSOW, which showed
Father’s weekly income and child support obligation as $2,292 and $422, respectively,
the trial court calculated the irregular income allocation ratio as .1841. It applied this
ratio to Father’s 2010, 2011, and 2012 bonuses in the following manner. After reducing
Father’s 2010 bonus of $21,500 by the state tax differential of .9475, the trial court
concluded that Father’s bonus eligible for child support was $20,371.25. Applying the
ratio of .1841, the trial court awarded a lump sum payment of $3,730.56 to Mother.
Utilizing the same methodology for Father’s 2011 and 2012 bonuses, the trial court
further awarded Mother $20,301.17 for the 2011 bonus and $17,455.53 for the 2012
bonus, resulting in a total lump-sum award of $41,487.26. Finally, it ordered that the
8
additional child support obligation resulting from any subsequent bonuses would be
calculated in the same manner using .1841 as the irregular income ratio.
Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Father challenges the trial court’s modification of his child support obligation on
several grounds. First, he challenges the trial court’s calculation of his 2012 and
subsequent weekly child support obligation by arguing that the trial court did not account
for alimony payments and issued an income withholding order inconsistent with its April
24, 2012 Order. Second, Father argues that the trial court abused its discretion in
calculating his additional child support obligation based on his 2010, 2011, 2012, and
subsequent employment bonuses. Specifically, he contends that the method of
calculating his additional child support resulting from his irregular income amounts to an
abuse of discretion; that the trial court’s lump sum award of his 2011 bonus represents an
impermissible retroactive modification of his child support obligation; and that the trial
court abused its discretion by awarding part of his 2010 bonus as additional child support.
Finally, Father asserts that the trial court abused its discretion by not addressing his
alleged overpayment of child support. We address each contention in turn.
I. Standard of Review
The trial court’s calculation of child support is presumptively valid. Martinez v.
Deeter, 968 N.E.2d 799, 805 (Ind. Ct. App. 2012). The trial court’s decision regarding
child support will be upheld unless it has abused its discretion. Id. A trial court abuses
9
its discretion when its decision is clearly against the logic and the effect of the facts and
circumstances before it or if it has misinterpreted the law. Id. Our standard of review is
also governed by the trial court’s decision in this case to enter findings of fact and
conclusions of law. See 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. Where, as here, it appears that the
trial court issued the 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 found, and we may affirm a general judgment on any
theory supported by the evidence adduced at trial. Id.II. 2012 Child Support Obligation
We first address Father’s two challenges to the trial court’s calculation of his 2012
and subsequent child support obligation. Father argues that the trial court abused its
discretion by declining to consider his alimony payments to Mother in contravention of
our opinion in Ashworth and by issuing an income withholding order inconsistent with its
April 24, 2012 Order. While Mother concedes that the trial court’s findings are
inconsistent with its income support order, she contends that the alimony payments she
received were payments in arrears and thus not includable in her current income for 2012
child support calculation purposes.
Father argues that evidence at the hearing established that he is currently under a
monthly garnishment of $2,530.28 for alimony, and that an additional lump sum of
10
$30,000 was garnished from his February 2012 bonus. The annual total of these
garnishments in 2012 would be $60,370 or $1,161 per week. He contends that contrary
to this court’s decision in Ashworth, the trial court did not deduct such payments from his
weekly gross income nor increase Mother’s weekly gross income by an equivalent
amount in calculating his 2012 child support obligation. As a result, he contends that the
trial court’s calculation of $348 is off by $813, which should be credited to his weekly
gross income and added to Mother’s weekly gross income.
In Ashworth, we determined that the $306,000 payment provision in the parties’
divorce decree represented alimony, rather than a property settlement. Ashworth, 934
N.E.2d at 160-61. As a result, the “$306,000 payment to [Mother] is in the nature of
maintenance and therefore $348.84 should be deducted from [Father’s] weekly gross
income.” Id. at 161. The $306,000 was “broken down into [$1,500] monthly payments
(or $348.84 per week).” Id. at 160.
We conclude that the trial court calculated Father’s child support obligation
consistently with our opinion in Ashworth. The CSOW attached to the trial court’s April
24, 2012 Order lists Mother’s weekly gross income as $733, which, based on her verified
financial declaration, consisted of her weekly wages of $385 and a weekly alimony
payment of $348. The trial court determined that Father’s gross salary for 2012 was
$141,000. It reduced this amount by $18,000 or $1,500 monthly to account for his
alimony payments. Father’s weekly gross income was calculated as $2,229.38, which
included a deduction for the state tax differential. Thus, the effect of the approximate
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weekly amount of alimony payments was taken into account by the trial court as
instructed by this court in Ashworth.
Father also urges us to conclude that the $30,000 lump-sum and the $2,530.28
monthly garnishments represent excess withholdings. However, Father does not contest
that these amounts represent “unsatisfied alimony payments which [he] had not made.”
(Appellant’s Br. p. 14). Further, Father did not provide the trial court with records
sufficiently detailing the extent of his alimony obligation and arrearage. Although
Father’s payment records reflect that deductions from his paycheck were taken by his
employer, the record does not substantiate what such deductions were for, nor does it
contain the garnishment orders upon which Father’s wages were garnished. Without this
information, we cannot conclude differently from the trial court. Furthermore, Mother
testified that the amount she receives through garnishment varies but is roughly $2,100.
She also testified that she had not received the $30,000 lump-sum amount. As we held in
Ashworth, the trial court does not abuse its discretion in not deducting unpaid alimony
from Father’s weekly gross income. Ashworth, 934 N.E.2d at 162. In sum, because
Father has not shown that the alimony remitted to Mother by garnishment represents
payment on the current amount of alimony, we conclude that the trial court did not abuse
its discretion by relying upon the weekly alimony amount specified in Ashworth.
Father also contends that the trial court’s income withholding order is inconsistent
with the amount it ordered. Both the April 24, 2012 Order and its attached CSOW state
that Father’s support obligation is $339.46. However, the trial court’s income
12
withholding order issued the same day directs U.S. Bank to withhold the amount of $348
per week. The difference is $8.54.
A review of the record reveals that this was likely a simple scrivener’s error
resulting from an unintended transposition of the alimony obligation of $348 to the
income withholding order. Although Mother concedes that this was likely a scrivener’s
error, she argues that since the trial court used Father’s 2011 salary of $141,000 rather
than his 2012 salary of $146,000, there is no need to remand for a difference of $8.54 per
week. Even though Father requests us to remand to the trial court to issue a corrected
income withholding and credit the difference to his obligation to pay a portion of his
2012 bonus, we decline Father’s request to credit a portion of his 2012 bonus payable to
Mother as child support, but nevertheless remand to the trial court to determine the
amount of credit owed and the manner in which it shall be applied.
III. Irregular Income Allocation
Father next argues that the trial court abused its discretion in calculating his
additional child support obligation based on his 2010, 2011, 2012, and subsequent
employment bonuses. Specifically, he contests the trial court’s use of an irregular
income allocation ratio of .1841 and the trial court’s methodology in determining his
irregular income. Further, he argues that the trial court abused its discretion in deeming
his 2011 and 2010 bonuses as irregular income.
A. Irregular Income Allocation Ratio
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The trial court found that Father’s “bonus payments by his employer constitute
substantial irregular income and had the marriage remained intact, the minor children
would have benefitted.” (Appellant’s App. p. 16). Weekly gross income is broadly
defined when determining parents’ income in the child support guideline calculation. See
Knisley v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007), reh’g denied. Income from
any source, including bonuses, may be considered. Child Supp. G. 3(A). While a very
fact-sensitive determination, irregular income may be included in the total income
approach taken by the Guidelines. Knisley, 875 N.E.2d at 340.
The Guidelines suggest that an equitable method of treating irregular income may
be to require the obligor to pay a fixed percentage of the irregular income rather than
determining the average of irregular income and including it in the obligor's gross income
calculation. Meredith v. Meredith, 854 N.E.2d 942, 948 (Ind. Ct. App. 2006).
Specifically, comment 2(b) to Guideline No. 3 provides:
One method of treating irregular income is to determine the ratio of the
basic child support obligation (line 4 of the worksheet) to the combined
weekly adjusted income (line 3 of the worksheet) and apply this ratio to the
irregular income during a fixed period. For example, if the basic obligation
was $110.00 and the combined income was $650.00, the ratio would be
.169 ($110.00 / $650.00). The order of the court would then require the
obligor to make a lump sum payment of .169 of the obligor’s irregular
income received during the fixed period.
Here, the trial court relied on its December 22, 2010 Order adopting Mother’s
CSOW to arrive at an irregular income allocation ratio of .1841. That CSOW showed
Father’s weekly child support obligation as $422. Dividing $422 by the combined
adjusted weekly income of $2,292 resulted in an irregular income ratio of .1841.
14
However, Father contends that the .1841 irregular income ratio is incorrect in light of the
CSOW attached to the April 24, 2012 Order. Using the April 24, 2012 Order’s CSOW,
he points out that the weekly child support obligation of $456 divided by $2,963.38, the
combined weekly adjusted income of the parties, yields a ratio of .1539. In response,
Mother insists that the trial court had authority and discretion to use the irregular income
allocation ratio based on the CSOW attached to the December 22, 2010 Order. We do
not agree.
As noted before, the December 22, 2010 Order relied upon the parties’ financial
declarations filed in 2009. The CSOW attached to the April 24, 2012 Order relies upon
the parties’ most recent financial declarations. By using an income allocation ratio based
on the parties’ 2009 financial data, we conclude that the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before it. Accordingly, we
reverse the trial court’s use of .1841 as an irregular income ratio applicable Father’s 2012
and subsequent bonuses and remand to the trial court to calculate and apply an irregular
income ratio using the CSOW attached to its April 24, 2012 Order.
B. Methodology
Father next challenges the trial court’s use of the methodology provided in
comment 2(b) to Child Support Guideline No. 3. That comment cautions that use of the
irregular income allocation ratio “will result in an overstatement of support due” under
certain circumstances:
The use of this ratio will not result in an exact calculation of support paid
on a weekly basis. It will result in an overstatement of the additional
15
support due, and particularly so when average irregular income exceeds
$250.00 per week or exceeds 75% of the regular adjusted Weekly Gross
Income. In these latter cases the obligor may seek to have the irregular
income calculation redetermined by the court.
Father argues that the trial court abused its discretion by using the percentage
methodology to determine his irregular income. In support, he provides two sample
calculations to illustrate that the percentage method used by the trial court overstates his
weekly child support obligation by $143.08 and $112.62, respectively. He therefore
requests that only 10% of his 2012 and future bonuses constitute additional child support,
which in his view, overstates his weekly child support obligation only by $14.34.
We note that Father did not present this argument to the trial court and it is
therefore waived. See Heaphy v. Ogle, 896 N.E.2d 551, 557 (Ind. Ct. App. 2008).
Waiver notwithstanding, Father’s proposed CSOW offered at the hearing, which took the
average amount of his 2010 through 2012 bonuses and combined them with his current
salary, calculated a weekly child support obligation of $348. In Martinez, we remanded a
child support calculation of irregular income based on the parties’ agreement that a
percentage method be used to determine the child support obligation from irregular
income. Martinez, 968 N.E.2d at 807. On remand, we held that the trial court could
determine the ratio at its discretion as the parties agreed on the method but not the ratio.
See id.
We see no reason to disturb the trial court’s discretion here. Father’s argument
does not reject the methodology used in the Guidelines, but only the allocation ratio.
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Accordingly, we find no abuse of discretion with the trial court’s decision to use the
income allocation method to determine Father’s additional child support obligation.
C. 2011 Bonus
Father also challenges the allocation of his 2011 bonus as irregular income. He
argues that the trial court’s award of $20,301.17 based upon his 2011 bonus represents an
impermissible retroactive modification of child support obligation.
The trial court found that Father received a bonus of $117,000 in February 2011,
which he reported on his verified financial declaration on April 4, 2012. The trial court
reduced the bonus by the state tax differential of 5.7% and applied an irregular income
factor of .1841, resulting in a lump-sum award of $20,301.87. Father contends that
because his bonus was paid in February 2011 and Mother’s petition for modification was
filed on December 12, 2011, the trial court erred by ordering him to pay any sum prior to
the date of the petition to modify.
Generally, retroactive modification of child support is erroneous if the
modification purports to retroactively modify a delinquent child support obligation and
relates back to a date earlier than that of the petition to modify. See Knisely, 875 N.E.2d
at 342. While the general rule has certain exceptions not relevant here, we have also
permitted a retroactive payment of child support under different circumstances. In
R.R.F. v. L.L.F., 935 N.E.2d 243, 248 (Ind. Ct. App. 2010), we ordered the father to pay
child support for a period of time predating the filing of the mother’s petition to modify
child support obligation. We concluded that because that the parties’ divorce decree did
17
not address and no order had issued upon the father’s obligation to pay child support
between the child’s eighteenth birthday and his twenty-first birthday, ordering the father
to pay child support for a four-month period preceding the filing of the petition was not a
retroactive modification of support. Id. Likewise, in Knisley, we affirmed the trial
court’s retroactive award of child support based upon the father’s receipt of a personal
injury settlement payment seven months prior to the mother’s petition to modify.
Knisley, 875 N.E.2d at 341-42.
Here, it is undisputed that neither the parties’ divorce decree nor any modification
order addressed Father’s irregular income. Further, Father’s 2011 bonus, though paid in
February 2011, was listed in his April 4, 2012 verified financial declaration. Father
himself testified that he believed his bonus to be part of his regular income by urging the
trial court to adopt an average of his three years of bonuses in calculating his 2012 child
support obligation. Under these circumstances, we decline to find an impermissible
retroactive modification of child support. Further, because Father makes no challenge to
the trial court’s use of .1841 as the applicable income allocation ratio with respect to the
2011 bonus, we affirm the trial court’s award of $20,301.17 in additional child support.
D. 2010 Bonus
Father also argues that the trial court abused its discretion by ordering him to pay
$3,730.56 as additional child support based on his 2010 bonus. The trial court found that
Father did not disclose his 2010 bonus and concluded that this amounted to a knowing
concealment in violation of T.R. 26(E)(2) and (3) as well as Marion County Family Law
18
Rule 504 governing financial declarations. Concluding that its December 22, 2010 Order
was obtained by fraud upon the court, the trial court invoked its equitable jurisdiction to
grant relief since Mother had not moved under T.R. 60(B) to set the Order aside.
Referring to the December 22, 2010 Order and its attached CSOW, which showed
Father’s weekly income and child support obligation as $2,292 and $422, respectively,
the trial court calculated an irregular income allocation ratio of .1841 and then applied
this to Father’s tax-adjusted 2010 bonus amount of $20,263.75,2 resulting in an award of
$3,730.56.
We note that Father does not challenge the trial court’s findings on his knowing
concealment of the 2010 bonus.3 Instead, he argues that his bonus is already reflected in
the December 22, 2010 Order and that the lump-sum award “essentially twice awards
[Mother] a portion of [Father’s] bonus.” (Appellant’s Br. p. 8). We disagree.
The trial court’s December 22, 2010 Order was issued in response to Mother’s
December 7, 2010 modification petition. In her pre-hearing submission, Mother
specifically sought a determination of Father’s “child support obligation commencing
2
Father points out the April 24, 2012 Order inconsistently states the tax-adjusted amount, with Paragraph
No. 47 listing it as $20,371.25 and footnote no. 3 listing it as $20,263.75. However, Father adopts the
award amount of $3,730.56 in his argument, which corresponds to the amount awarded by the trial court
in Paragraph No. 48 of the Order.
3
In an attempt to avoid waiver, Father argues in his reply brief that Mother failed to initiate discovery by
serving him a blank financial declaration in 2010. As a result, he contends that he was under no
obligation to update his 2009 financial declaration to include his 2010 bonus. However, “[a]pellants are
not permitted to present new arguments in their reply briefs, and any argument an appellant fails to raise
in his initial brief is waived for appeal.” In re Paternity of P.B., 932 N.E.2d 712, 725 n. 12 (Ind. Ct. App.
2010). Thus, because Father failed to contest the trial court’s finding of fraud upon the court in his
appellate brief, the issue is waived.
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June 11, 2009.” (Appellant’s App. p. 24). Mother’s CSOW submitted in support relied
on the parties’ 2009 financial information, which listed Father’s weekly income as $2,292
and Mother’s income as zero because Mother argued that the trial court should not figure
alimony in either party’s income because Father was in arrears. The weekly child
support obligation resulting from this data was $422, which the trial court ordered as
evidenced by the December 22, 2010 CCS entry.
At the 2012 hearing, Father’s counsel admitted that the amount of $422 “was
based upon a prior number.” Though Father’s counsel attempted to argue that this
amount may have included Father’s prior, albeit nominal, bonuses, Mother’s counsel
clarified that the “$422 came from that [CSOW] that we were all working from back in
2009,” and Father’s counsel relented by stating “the $422 is fine.” (Tr. pp. 20-21).
Consequently, Father’s 2010 bonus of $21,500 could not have been relied upon by the
parties in calculating the December 22, 2010 Order because that Order was based on
2009 financial figures. Father’s argument that Mother has twice been awarded for the
bonus fails for the same reason. Accordingly, the trial court did not abuse its discretion
by awarding a portion of his 2010 bonus as additional child support.
IV. Overpayment
Finally, Father argues that the trial court abused its discretion by not addressing
his alleged overpayment of child support. Specifically, he asserts an overpayment of
“child support to [Mother] in the amount of [$5,794] covering the period of [June 2008]
through [December 2010].” (Appellant’s Br. p. 16). Father claims that “[s]uch
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overpayment resulted from a combination of varying amounts ordered by the trial court
through income withholding orders and then modification of a portion of those amounts”
by this court’s opinion in Ashworth. (Appellant’s Br. p. 16). He requests that a credit be
applied to that portion of his 2012 and future bonuses payable as child support. In
response, Mother argues that Father failed to raise the issue at the December 22, 2010
hearing and further that Father is barred by the equitable doctrine of unclean hands.
Our opinion in Ashworth determined that the following amounts should be
credited against Father’s child support obligation. First, Father was to receive credit
against his child support obligation for health insurance premiums. Ashworth, 934
N.E.2d at 162. Next, Father was to receive credit for payment of his daughter’s
preschool expenses since there was no evidence that Mother had worked or sought a job
during the relevant period. Id. at 164. Finally, Father was to receive credit for his son’s
private school tuition as the parties had not agreed on private schooling for their children.
Id. at 166. Calculation of these credits was to be determined on remand. Id. at 162, 164,
166.
We do not agree that the trial court abused its discretion by not addressing Father’s
claim for reimbursement. Father did not present the trial court or this court with
information sufficient to provide a meaningful review of his claims. At the hearing,
Father offered a spreadsheet purporting to compare his actual monthly child support
paycheck deductions with an amount purporting to constitute the child support
calculation resulting from this court’s opinion in Ashworth. However, Father has not
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provided details to determine what amounts were deducted and what amounts should
have been credited. More importantly, Father had an opportunity on remand to ensure
that these amounts were properly credited to him. However, the parties testified that the
December 22, 2010 Order represented the parties’ agreement on Father’s child support
obligation. Consequently, we find that Father has invited the error he complains of and is
therefore estopped from further seeking credit for amounts overpaid from June 2008 to
December 2010. See Reinhart v. Reinhart, 938 N.E.2d 788, 790-93 (Ind. Ct. App. 2010).
CONCLUSION
Based upon the foregoing, we conclude that the trial court did not abuse its
discretion in calculating Father’s 2012 and subsequent weekly child support obligation.
We conclude that the trial court abused its discretion by using an irregular income factor
based upon the parties’ prior financial declarations to determine Father’s additional child
support obligation for his 2012 and subsequent irregular income. However, the trial court
did not abuse its discretion in its use of an income allocation ratio to determine the
amount of additional child support. Further, we hold that the trial court did not abuse its
discretion in calculating Father’s child support obligation based on his irregular income
for 2011 and 2010. We reverse and remand with instructions to 1) apply the income
allocation factor of .1549 to Father’s 2012 and future bonuses; and 2) correct a
scrivener’s error in the April 24, 2010 Income Withholding Order and calculate the
resulting credit owed to Father and its repayment method.
Affirmed in part, reversed in part, and remanded.
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BAKER, J. and BARNES, J. concur
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