Daniel S. Hamm v. Leah M. Brown (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 02 2020, 8:35 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT
Kelly Cochran
Tracy Pappas
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel S. Hamm, December 2, 2020
Appellant-Respondent, Court of Appeals Case No.
20A-JP-920
v. Appeal from the Hendricks Circuit
Court
Leah M. Brown, The Honorable Daniel F. Zielinski,
Appellee-Petitioner. Judge
Trial Court Cause No.
32C01-1012-JP-87
Altice, Judge.
Case Summary
[1] Daniel Hamm (Father) appeals the trial court’s order determining his monthly
payment on a child support arrearage, arguing that the trial court abused its
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discretion by ordering him to pay a monthly amount that leaves him without
enough money for food and other necessary daily expenses.
[2] We reverse and remand.
Facts & Procedural History
[3] Father and Leah Brown (Mother) are the parents of one daughter (Child), born
in October 2000. In 2006, following a car accident, Father began receiving
$793 per month in Social Security disability benefits. 1 The monthly SSD
payments were and remain Father’s only source of income as the accident
rendered him unable to work. In July 2011, Hamm was found in contempt and
ordered to pay $55 per week in child support and an additional $10 per week
toward a $25,924.00 then-existing arrearage. Around September 2011, Father
began paying by income withholding order, with $281.70 per month being
withheld from his SSD check for the child support and arrearage payment.
[4] In June 2019, Father filed a pro se petition to terminate child support asserting
that Child was emancipated because she was eighteen years old, was not
enrolled in school, and was capable of supporting herself through employment.
In July 2019, Mother filed a verified petition for contempt alleging that Father
1
Social Security Disability Insurance (SSD) benefits are included in Indiana Child Support Guideline
3(A)(1)’s definition of “weekly gross income” for purposes of calculating child support. See also Child Supp.
G. 3(G)(5)(a)(ii) (“Social Security Disability benefits shall be included in the Weekly Gross Income” of the
noncustodial parent”). In contrast, benefits paid as Supplemental Security Income (SSI), which is a means-
tested public assistance program, are specifically excluded from weekly gross income. See Child Supp. G.
3(A)(1) and Commentary to Child Supp. G. 3(G). Father characterizes the benefits that he receives as
disability benefits, and we proceed on the assumption that his benefits are SSD and not SSI.
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had failed to comply with the July 2011 order and had an arrearage of over
$26,000.00.
[5] Following an August 28, 2019 hearing, the court issued an order finding Father
in contempt for failing to pay child support as ordered and determining his
current arrears to be $25,862.90. The court also ordered Father to provide his
2018 tax return and copies of his last six SSD payments, and it set the matter for
a “review/sanctions” hearing in October 2019. 2 Appellant’s Appendix at 12.
[6] The review hearing was reset and held on January 15, 2020. The parties agreed
that Child was emancipated as of October 2019 and that Father no longer owed
the $55 per week child support obligation. The parties also agreed that Father
had an arrearage of approximately $25,000. 3 The hearing was held to
determine how much Father should pay per month toward the arrearage.
[7] Father testified that after the $281.70 was withheld from his SSD check, he was
left with $511.30 per month, which figure increased to $524.30 per month in
January 2020 after a cost-of-living adjustment in benefits. With regard to
monthly expenses, Father stated that his lot rent was $350 per month and
utilities were approximately $200 per month, totaling $550 per month, which
was more than he had available after the child support and arrearage payment.
2
Father maintains in this appeal that he had been paying the court-ordered amount since 2012 and should
not have been found in contempt at the August 28, 2019 hearing, but concedes that he did not appeal the
contempt order and that a challenge to the contempt finding is thus no longer available.
3
An exact arrearage amount was not determined at the hearing but the parties agreed that they would later
calculate the outstanding amount.
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When asked how he had been managing to afford the $281 to date, Father
explained that from 2012 through 2015, his mother lived with him and helped
pay rent and other expenses. In 2016, he married, and his wife worked a full-
time job and helped with rent and other expenses, but she was in a car accident
in 2019 and, as of the date of the hearing, had not worked for eight months.
Father testified that the current $281 per month payment was an extreme
hardship, did not leave him with enough money to pay his bills, and that he and
his wife were about to be “kicked out” of their residence. Transcript at 20.
Father asked the trial court to reduce the amount being withheld to $100 per
month, the entirety of which would now apply to his arrearage.
[8] Mother testified that she wanted Father’s payment to remain at $281 per
month, but she acknowledged that Father was living on a small amount of
money and indicated she was willing to be “understanding” and “merciful” of
Father’s situation. Transcript at 27. She requested that, if any reduction be
ordered, Father’s monthly payment toward his arrearage be no less than $200,
testifying, “I [] have medical debt of [Child]’s that I’ve always had to pay on my
own” and “I still have those bills.” 4 Transcript at 27.
[9] The trial court issued an order that terminated Father’s $55 per week child
support obligation as agreed by the parties and reduced Father’s monthly
payment from $281.70 to $200 per month. The order stated in part:
4
Father acknowledged at the hearing that he was criminally charged and convicted for his conduct that
resulted in the car accident and his disability and that Child was in the car at the time. It is not clear from the
record whether the medical debt that Mother refers to is related to the car accident.
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6. Father request[s] the Court to modify his child support
obligation to $100 dollars per month. Should the Court grant
father’s request it would take nearly 21 years for any arrears to be
paid in full, assuming father paid $100 per month.
7. Father[’]s only income is his social security benefits, however,
he has been able to pay that amount via income withholding
order.
***
9. Mother request[s] father to pay $200 dollars per month
towards his arrearage.
10. The Court finds that mother’s position is more than
reasonable and therefore, modifies child support obligation by
father to $200 dollars per month to be paid via income
withholding order.
Appellant’s Appendix at 13-14.
[10] Father filed a motion to correct error, arguing, among other things, that the
court, by ordering Father to pay $200 per month, “essentially modified and
increased the prior arrearage payment of $10 per week to $46 per week[,]” and
“[i]t was error for the Court to order such a high amount of payment toward
the child support arrearage when [Father]’s income is limited by his disability.”
Id. at 18. Father reiterated that after payment of the $200 per month and his
$550 per month housing expenses, he was not left with funds for food, medical
care, and transportation. Father noted that the Commentary to Indiana Child
Support Guideline 3F provides that a child support payor should not be denied
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a means of self-support at a subsistence level and, here, “the child support
payment order of $200 per month denies [Father] the means of self-support at a
subsistence level.” Id. at 20. Father requested, as he did at trial, that not more
than $100 be withheld from his SSD check.
[11] Mother filed a response maintaining that Father has consistently paid $281.70
per month for years and that his income has not changed. Additionally, she
argued that the court “in fact, reduced Father’s payment by $81.70 per month,
placing [him] in a better financial situation than he has found himself for the
last 9 years.” Id. at 23.
[12] The trial court denied Father’s motion, and he now appeals.
Discussion & Decision
[13] We generally review a trial court’s ruling on a motion to correct error for an
abuse of discretion. Hill v. Cox, 153 N.E.3d 283, 286 (Ind. Ct. App. 2020). “An
abuse of discretion occurs when the trial court’s decision is against the logic and
effect of the facts and circumstances before the court or if the court has
misinterpreted the law.” Id. However, we apply a de novo standard of review
when the issue presented for review is a pure question of law. Id.[14] Determinations of child support obligations are likewise within a trial court’s
discretion, and we will not set such determinations aside unless they are clearly
erroneous. McGuire v. McGuire, 880 N.E.2d 297, 301 (Ind. Ct. App. 2008). We
give due regard to the trial court’s ability to assess the credibility of witnesses.
Id. We do not reweigh the evidence; rather we consider the evidence most
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favorable to the judgment with all reasonable inferences drawn in favor of the
judgment. Id.[15] Before addressing the merits of Father’s appeal, we observe that Mother did not
file an appellee’s brief. In such a situation, we do not undertake the burden of
developing arguments for her, and we apply a less stringent standard of review,
that is, we may reverse if the appellant establishes prima facie error. Turner v.
Turner, 983 N.E.2d 643, 646 (Ind. Ct. App. 2013). This rule was established so
that we might be relieved of the burden of controverting the arguments
advanced in favor of reversal where that burden properly rests with the
appellee. Ward v. Ward, 763 N.E.2d 480, 481 (Ind. Ct. App. 2002). In this
context, prima facie error is defined as error “at first sight, on first appearance,
or on the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006).
As we have recognized, “This standard, however, ‘does not relieve us of our
obligation to correctly apply the law to the facts in the record in order to
determine whether reversal is required.’” WindGate Properties, LLC v. Sanders,
93 N.E.3d 809, 813 (Ind. Ct. App. 2018) (quoting Wharton v. State, 42 N.E.3d
539, 541 (Ind. Ct. App. 2015)).
[16] Father maintains the trial court’s order “deprived [him] of his ability to support
himself a minimum subsistence level” and should be reversed and remanded.
Appellant’s Brief at 7, 10 (emphasis in original). In support, Father relies on, in
part, McGill v. McGill, 801 N.E.2d 1249, 1253 (Ind. Ct. App. 2004).
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[17] In McGill, the mother and custodial parent (Jayne) filed a petition for contempt
and for modification of support payments, and the non-custodial father
(Walter), who was disabled and receiving monthly benefits of $276 in SSI and
$296 in SSD (for a total of $572), petitioned to lower his support payments.
The trial court modified the existing $25 per week support order, ordering that
Walter pay $20 per week in current support, plus an additional $5 per week
toward a $9110 child support arrearage, for a weekly payment of $25. Upon
Walter’s motion to correct error, the trial court ordered him to pay $15.57 in
child support plus $5 toward the arrearage, for a payment of $20.57 per week.
Walter appealed, and Jayne did not file an appellee’s brief.
[18] Walter agreed that he should pay child support but argued the amount ordered
was an abuse of discretion. He presented evidence that his trailer payment, lot
rent, utilities, and the $20 support payment totaled $500 per month, leaving him
with $72 for food, toiletries, and other basic needs. The McGill court
determined that Walter made a prima facie showing that the $20.57 per week
payment was an abuse of discretion and remanded with instruction to set his
support obligation “at a level that will not deprive him of self-support at a
subsistence level.” Id. at 1253.
[19] We recognize that the court, here, faced the difficult and unenviable task of
determining the proper amount that Father, who had low income and was not
able to work, should pay to Mother on his undisputed $25,000 arrearage that
accumulated when Father did not pay child support for approximately ten
years. Although the court decreased the overall monthly withholding from his
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SSD benefit by $81.70, we find that Father has presented a prima facie case that
the payment of $200 per month left him without enough money to pay his basic
needs.
[20] Specifically, it is undisputed that Father received approximately $800 per
month in SSD, which after the $200 payment toward arrearage, would leave
Father with approximately $600 on which to live. He testified that his lot rent
and utilities totaled approximately $550 per month, leaving him around $50 per
month for food, transportation, and medical expenses. From 2012 to 2015, his
mother lived with him and contributed to payment of expenses, and from 2016
to 2019, his wife worked a full-time job and contributed to payment of
expenses. His wife was injured in a car accident in 2019, however, and has not
worked since that time. Father testified that they were going to get “kicked
out” of their residence. Transcript at 20.
[21] Given our standard of review in this case, we conclude that Father has made a
prima facie showing that the court’s order that he pay $200 per month denied
him the means of self-support at a subsistence level and warrants reversal.
While Father requests that the trial court order him to pay $100 per month, we
observe that there was no evidence at the hearing as to whether Father’s wife
will be able to work in the future or whether she has applied (or would be
applying) for any social security, worker’s compensation, or other benefits or
whether she may be receiving insurance or other compensation from the
accident, which could contribute to the household expenses. There was no
evidence presented whether Father might be concurrently eligible for SSI, food
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stamps, or other assistance. We instruct that, on remand, the trial court is not
required to order payment in the amount of $100 per month as requested by
Father and in its discretion may hold a hearing to accept additional evidence on
the matter.
[22] Judgment reversed and remanded.
May, J., concurs.
Riley, J., concurs in part and dissents in part with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Daniel S. Hamm, Court of Appeals Case No.
20A-JP-920
Appellant-Respondent,
v.
Leah M. Brown,
Appellee-Petitioner
Riley, Judge concurring in part and dissenting in part
[23] I concur with the majority’s conclusion that Father has made a prima facie
showing that the trial court abused its discretion by ordering him to pay $200
per month toward his arrearage. However, I respectfully dissent from the
majority’s conclusion that remand is warranted in order for the trial court to
receive additional information regarding Father’s wife’s future earning
capabilities, her possible eligibility for government assistance, receipt of
insurance or compensation resulting from her car accident, and Father’s
eligibility for additional government benefits. Income for purposes of
determining child support is based on actual income, not future income. See
Ind. Child Support Guideline 3(A)(1) (“For purposes of these Guidelines,
“weekly gross income” is defined as actual weekly gross income . . .”). At the
January 15, 2020, hearing, Father presented evidence regarding his and his
wife’s then-current income and expenses. This evidence should be the basis for
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computing Father’s arrears payment, and the evidence presented by Father
supported his request that his arrears payment be reduced to $100. For these
reasons, I respectfully dissent.
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