In the Matter of the Paternity of T.M.-B. (Child), Robert E. Bush v. Julie Mapletoft ( 2019 )

FILED
Jun 28 2019, 8:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Edward J. Calderaro George P. Galanos
Kristin R. Valdivia Crown Point, Indiana
Sachs & Hess, P.C.
St. John, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of June 28, 2019
T. M.-B. (Child), Court of Appeals Case No.
18A-JP-2907
Robert E. Bush,
Appeal from the Lake Superior
Appellant-Petitioner, Court
v. The Honorable Thomas P.
Stefaniak, Judge
Julie Mapletoft, The Honorable Aimee M. Talian,
Magistrate
Appellee-Respondent
Trial Court Cause No.
45D06-1203-JP-694
May, Judge.
[1] Robert E. Bush (“Father”) appeals the paternity order entered in his action
against Julie Mapletoft (“Mother”) regarding the support of their daughter, T.
M.-B. (“Child”). He raises six issues for our review, which we restate as:
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1. Whether the trial court abused its discretion in holding Father’s
gambling income should be treated as regular income for the purpose of
calculating Father’s child support obligation;
2. Whether the trial court abused its discretion in awarding Mother
credit for healthcare premiums in the amount ordered;
3. Whether the trial court abused its discretion in clarifying a previously
agreed order to provide a price range and other guidance to govern the
purchase of a horse for Child; and
4. Whether the trial court abused its discretion in finding Father in
contempt for failing to pay for horseback riding lessons for 2017-18 and
for failing to purchase a saddle for Child.
We affirm in part, reverse in part, and remand.
Facts and Procedural History
[2] Mother and Father have one daughter, Child. Child was born in 2005. On
June 10, 2013, the trial court determined Father’s paternity of Child and
ordered Father to pay $690.00 per week in child support. The decree directed
Mother to carry Child on her work-related health insurance policy. It also
directed Father to pay 84% and Mother to pay 16% of the costs associated with
Child’s extracurricular activities. On March 13, 2015, the court entered an
agreed order after both Mother and Father filed verified motions for contempt.
In relevant part, the order provided:
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B. That the 2015-2016 extra-curricular activities will be
horseback riding and gymnastics. Mother will pay all of the
gymnastics fees if the child decides to do gymnastics. Father will
pay all of the horseback riding fees and will buy the child a horse
and saddle.
C. That for the years after the 2015-2016 school year, the mother
and father will discuss the extra-curricular activities the child
chooses and whatever activities are agreed upon, father will pay
84% directly to the school if it is allowed to be paid that way. If
not, then he will pay mother and she will pay the bill.
(App. Vol. 2 at 33-34.)
[3] The Illinois State Lottery pays Father an annuity in the gross amount of
$423,000.00 per year, and Father supplements this income with casino
winnings. Between 2015 and 2017, Father won substantial net amounts at
casinos: $164,500.00 in 2015; $90,865.00 in 2016; and $229,415.00 in 2017.
[4] In May 2016, Mother filed a Verified Petition for Modification of Child
Support and the Child’s Medical Health Coverage. On June 1, 2017, Mother
filed a Verified Petition for Rule to Show Cause asserting Father was in
contempt for failure to pay child support, failure to pay Child’s horseback riding
fees, and failure to purchase a horse and saddle for Child. The trial court held a
hearing on both petitions on October 24, 2018.
[5] At the hearing, Kieran Dulik, Child’s horseback riding instructor, was certified
as an expert in that field and testified regarding her experience with Child and
Child’s riding abilities. Dulik has eighteen years of professional experience
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teaching others to ride horses. She began training Child in 2017 in the hunter-
jumper style of horseback riding. Child is a beginner when it comes to
horseback riding, but she is passionate about the sport and participates in
weekly lessons. Child currently uses Dulik’s schooling saddle and the cost for
borrowing the saddle is included in the Child’s lesson fee.
[6] Dulik testified some horses perform better in the hunter-jumper style than
others and a horse and rider must have good chemistry. Dulik recommended
an experienced horse in the $10,000 to $15,000 price range for a beginning rider
like Child, and Mother agrees with this recommendation. Father believes a
suitable horse can be found below this price range. Father provided Mother
with a list of horses he is willing to purchase for Child, including a horse worth
$800. However, Dulik testified that a typical $800 horse would not be suitable
for Child because such horses are old and cannot be ridden in the hunter-
jumper style. Consequently, the parties have not agreed on the proper horse to
purchase for Child.
[7] As to Child’s healthcare coverage, Mother testified she began paying for health
insurance through Ambetter in December 2017. For the years 2016 and 2017,
Mother purchased health insurance for herself and Child through COBRA.
Prior to 2016, Mother was married, and her husband covered Child on his
health insurance.
[8] On November 9, 2018, the court issued an order with findings of fact and
conclusions of law. The court’s findings adopt Mother’s recalculation of
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Father’s child support obligation for 2016 and 2017. Thus, the court ordered
Father’s 2016 child support obligation to be $788.43 per week, retroactive to the
date of Mother’s petition to modify. The court also determined Father’s 2017
child support obligation was $978.14 per week. The court awarded Mother
credit of $89.36 per week for Child’s weekly health insurance premium for
2016, 2017, and 2018. In relevant part, the order also stated:
5. Father receives a yearly annuity in the amount of $423,000.00.
The additional income reflected on Father’s annual tax returns
are the result of Father’s casino winnings related to his endeavors
as a professional gambler. Father’s annual gambling proceeds
have and will continue to vary from year to year. Therefore, for
purposes of determining Father’s income for the year 2018, the
Court will utilize an average of Father’s income from the two
prior years.
6. Father’s average weekly income for the year 2018 is
$11,214.23…Father is ordered to pay child support in the amount
of $878.00 per week for the year 2018 and going forward.
*****
11. The minor child currently attends horse riding lessons. This
Court’s order of March 13, 2015 requires Father to pay for the
child’s lessons in 2015-2016. This Court does not believe that the
parties intended to return to Court every year when the child
decided to continue with horse riding lessons. Mother has
incurred $1,350.00 in lesson fees for the minor child during the
year 2017 and seeks to have Father pay those expenses pursuant
to the March, [sic] 2015 order.
(App. Vol. 2 at 22-23.)
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[9] The court found Father in contempt for failure to pay Child’s 2017 horse riding
fees and ordered Father to reimburse Mother for the 2017 horse riding lesson
fees in order to purge himself of contempt. The court did not find Father in
contempt for failure to purchase a horse but did find him in contempt for failure
to purchase a saddle. The court ordered the parties to exchange lists of
potential horses for Child in the $3,000.00 to $10,000.00 price range and to visit
the horses. Mother, Father, and Child are to be involved in the decision to
purchase the horse, with the opinion and assistance of Child’s instructor being
considered. If the parties cannot agree on a suitable horse, Father may make
the final decision.
Discussion and Decision
[10] A trial court’s calculation of child support is presumed to be valid and is
reviewed for an abuse of discretion. Ashworth v. Ehrgott, 982 N.E.2d 366, 372
(Ind. Ct. App. 2013). An abuse of discretion occurs when a trial court’s
“decision is clearly against the logic and effect of the facts and circumstances
before it or if it has misinterpreted the law.” Id. Similarly, the issue of
contempt is left to the sound discretion of the trial court and we review such
findings under an abuse of discretion standard. Reynolds v. Reynolds, 64 N.E.3d
829, 832 (Ind. 2016).
[11] Where the trial court issues specific findings sua sponte, as it did in this case, the
specific findings control our review and the judgment only as to the issues those
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specific findings cover. Trust No. 6011, Lake County Trust Co. v. Heil’s Haven
Condos. Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind. Ct. App. 2012), trans. denied.
Where there are no specific findings, a general judgment standard applies, and
we may affirm on any legal theory supported by the evidence. Id. We apply a
two-tier standard in evaluating sua sponte findings and conclusions: (1) whether
the evidence supports the findings, and (2) whether the findings support the
judgment. Id. We do not reweigh the evidence or assess the credibility of the
witnesses. Mitchell v. Mitchell, 875 N.E.2d 320, 322 (Ind. Ct. App. 2007), trans.
denied.
Father’s Gambling Income
[12] Father argues the trial court improperly treated his gambling income as regular
income in determining his child support obligation. A trial court determines a
child support obligation by looking at each parent’s gross weekly income, which
is the actual gross weekly income of a parent employed to his or her full
capacity, the potential income of a voluntarily unemployed or underemployed
parent, and any imputed income based upon in-kind benefits. Meredith v.
Meredith, 854 N.E.2d 942, 947 (Ind. Ct. App. 2006). The court determines a
parent’s potential income by looking at “the obligor’s potential and probable
earnings level based on the obligor’s work history, occupational qualifications,
prevailing job opportunities, and earnings levels in the community.” Id.
However, a parent’s past earnings do not necessarily guarantee future earnings.
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“Overtime, commissions, bonuses, and other forms of irregular income are
included in the total income approach provided by the Guidelines, ‘but each is
also very fact-sensitive.’” Id. at 948 (quoting Child Supp. G. 3, cmt. 2(b)).
Father relies on Meredith to argue that his casino earnings should be treated as
irregular income, with the court ordering Father to pay a fixed percentage of his
gambling earnings rather than ordering him to pay a specific amount.
[13] However, Father’s gambling earnings differ from the overtime earnings
discussed in Meredith. Overtime earnings depend on the whims of an employer.
A person may volunteer to work overtime, but the employer ultimately controls
whether the person will have the opportunity to work overtime and the amount
of overtime the person will work. Father, in contrast, is a self-employed
professional gambler. Gambling is not a mere hobby for Father. It is his
occupation. His profession is fraught with risk, but it has an alluring upside.
He controls when he goes to the casino, how long he spends at the casino, and
how much money he risks at the casino.
[14] In Trabucco v. Trabucco, the husband was a urologist who was arrested for
maintaining a marijuana grow operation and convicted of marijuana
possession. 944 N.E.2d 544, 547 (Ind. Ct. App. 2011), trans. denied. Husband’s
income fluctuated after the conviction because his medical license was briefly
suspended, he had difficulty obtaining malpractice insurance, he lost patients,
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and he experienced other problems. Id. at 547-48. The trial court calculated
husband’s gross weekly income by taking the income reported on husband’s tax
returns over a five-year period, disregarding the highest and lowest annual
incomes, and averaging the incomes for the remaining three years. Id. at 548.
We affirmed the trial court’s income calculation. Id. at 553. Courts often use
income averaging to determine the gross weekly income of self-employed child
support obligors. Id. at 552. We noted “all forms of self-employment create
some level of unpredictability in income, and such factual determinations are
best left to the trial court.” Id.
[15] Similarly, in the case at bar, we will not substitute our judgment for that of the
trial court. Thus, we cannot say the trial court abused its discretion in
determining Father’s gross weekly income by averaging his gambling earnings
and adding that amount to his annuity income. See In re Paternity of G.R.G., 829
N.E.2d 114, 119 (Ind. Ct. App. 2005) (holding trial court did not abuse its
discretion by determining obligor’s gross income by averaging his fluctuating
income).
Award of Healthcare Premiums to Mother
[16] Father asserts the trial court erred in awarding Mother health insurance
premium credit for half of 2016 and most of 2017. He argues these health
insurance premiums were paid by Mother’s ex-husband. However, Mother’s
testimony indicates that while Child was covered under Mother’s ex-husband’s
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health insurance for a time, she was not covered during the 2016-2017
timeframe. Mother was paying COBRA, and Mother testified that COBRA
cost $1,053 per month for her and her daughter. Father’s argument that the
trial court erroneously credited Mother for health insurance premiums is merely
a request for us to reweigh the evidence, which we will not do. See Ponziano
Const. Servs., Inc. v. Quadri Enters., LLC, 980 N.E.2d 867, 873 (Ind. Ct. App.
2012) (appellate court does not reweigh evidence or judge the credibility of
witnesses).
[17] Father also argues the trial court erroneously awarded Mother credit for half of
her total health insurance premium through Ambetter in calculating child
support because he claims Mother failed to produce evidence regarding what
portion of her health insurance premium is attributable to her and what portion
is attributable to Child. Mother testified that her insurance premium cannot be
broken down to determine what portion covers her and what portion covers
Child. We cannot say the trial court abused its discretion in its award of credit
for the healthcare premiums to Mother because evidence in the record supports
the trial court’s allocation. See In re Paternity of Jo.J., 992 N.E.2d 760, 771 (Ind.
Ct. App. 2013) (rejecting invitation to reweigh the evidence and holding trial
court’s determination of Mother’s weekly gross income was not clearly
erroneous).
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Modification of Settlement Agreement
[18] Father argues the trial court impermissibly modified a settlement agreement
when it specified a price range and conditions for the horse Father is to
purchase for Child. The general rules of contract interpretation govern the
interpretation of a settlement agreement. Kiltz v. Kiltz, 708 N.E.2d 600, 602
(Ind. Ct. App. 1999), trans. denied. If a contract is unambiguous, the court looks
to the “four corners” of the document to determine the intent of the parties.
McCord v. McCord, 852 N.E.2d 35, 43 (Ind. Ct. App. 2006), trans. denied.
However, if a contract term is ambiguous, the court may allow evidence to
clarify the ambiguity. Id. A term is ambiguous if reasonably intelligent people
can differ as to the meaning of the term. Id.
[19] The term “horse” in the March 13, 2015, agreed order is ambiguous because
two reasonable people can interpret “horse” differently. There are many
different breeds of horse, horses vary in price, and a rider will get along with
some horses better than others. For instance, in this case, Father offered to
purchase a horse with a sale price of $800, but Mother interprets “horse” to
mean an animal worth over $10,000. Thus, the trial court did not err in taking
evidence to clarify the meaning of the contract term “horse.” Father testified
that he wants Child to ride a horse that is safe and that he wants to be involved
in selecting the horse. The trial court did not err in clarifying the term “horse”
to be a steed that will meet Child’s needs without being unduly expensive or in
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providing a procedure for the parties to choose a suitable horse. See Shepherd v.
Tackett, 954 N.E.2d 477, 482 (Ind. Ct. App. 2011) (holding trial court’s order on
meaning of “assignment” in dissolution decree was a clarification rather than a
modification of the decree).
Contempt
[20] Father argues the court erred in finding him in contempt for failing to pay for
Child’s 2017 and 2018 horseback riding lessons. A person is guilty of indirect
contempt when he or she knows about a lawfully entered court order and
willfully disobeys the order. Mitchell v. Mitchell, 785 N.E.2d 1194, 1198 (Ind.
Ct. App. 2003). “However, the court’s order must be clear and certain such
that there is no question regarding what a person may or may not do and no
question regarding when the order is being violated.” Id. A court may not hold
a party in contempt for failing to comply with an ambiguous or indefinite order.
Id.
[21] Father argues the 2015 order was ambiguous because it ordered him to pay
horseback riding fees only for 2015 and 2016. We disagree. The order directs
Father to reimburse Mother for Child’s extracurricular activities during the
2014-2015 school year, allocates financial responsibility for the 2015-2016
school year, and directs the parties to communicate regarding Child’s
extracurricular activities after the 2015-2016 school year, with Father to pay
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84% of the fees associated with those activities. Therefore, even though the
order mentions only 2015 and 2016, Father was aware of Child’s interest in
horseback riding and knew he would have to bear at least some of the financial
burden if she continued the lessons beyond 2016.
[22] From the initial decree, the court apportioned a part of the ongoing expenses
associated with Child’s extracurricular activities to Father. As the trial court
notes in paragraph 11 of the November 9, 2018 order, the parties could not
have intended to return to court every year for modification of the settlement
agreement when Child decided she wanted to continue horseback riding
lessons. The order anticipated the parties would communicate and Father
would pay his stated percentage for horseback riding lessons, or some other
extracurricular activity, beyond 2016. Father’s failure to pay constitutes
contempt. See id. at 1198 (holding wife was in contempt when she surrendered
a $100,616 life insurance policy for cash value and a court order directed her to
transfer a $100,000 life insurance policy to daughter).
[23] However, the trial court puts the cart before the horse in finding Father in
contempt for failing to purchase a saddle, because expert testimony indicates a
saddle must be fitted to the horse and the parties have not yet agreed on a horse.
Kieran Dulik testified saddles “are fit to the horse that they are used for. So
there are narrow, there are wide, there are longer flaps, shorter flaps, so you
want it to fit the horse that it’s going to be used for.” (Tr. Vol. 2 at 21.) Child
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requires a jumping saddle, which can cost between $800 and $5,000. Dulik
recommended a $1,200 saddle. Father testified that he is willing to purchase a
saddle once the parties have agreed on a horse. However, Father and Mother
disagree on the proper horse for Child and the March 13, 2015, order did not
specify the type of horse, the age, or the cost of the horse. The trial court found
Father to not be in contempt for his failure to purchase a horse but found Father
in contempt because the March 13, 2015, order required him to purchase a
saddle and he had not done so. These conclusions do not logically fit together.
If Father is not in contempt for failing to purchase a horse, then he cannot be in
contempt for failing to purchase a horse-specific accessory. Thus, Father
should not be held in contempt for failing to purchase a saddle for a horse Child
does not yet possess. See Paternity of J.W. v. Piersimoni, 79 N.E.3d 975, 982 (Ind.
Ct. App. 2017) (reversing trial court’s finding of contempt because mother’s
conduct did not amount to willful disobedience of court’s parenting time order).
Conclusion
[24] The trial court did not abuse its discretion in calculating Father’s income,
clarifying that the parties must find a horse for Child in the $3,000 to $10,000
price range, crediting Mother for the payment of healthcare premiums, or
finding Father in contempt for failing to pay for Child’s horseback riding
lessons in 2017 and 2018. However, the trial court abused its discretion in
finding Father in contempt for failing to purchase a saddle. Therefore, we
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affirm in part, reverse in part, and remand for further proceedings consistent
with this opinion.
[25] Affirmed in part, reversed in part, and remanded.
Mathias, J., and Brown, J., concur.
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