In Re: The Marriage of: Mandana Khatibi-Entezari v. Joseph Entezari (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 04 2019, 10:20 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT APPELLEE PRO SE
Sarah Trostle Joseph Entezari
Eimerman Law Indianapolis, Indiana
Zionsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Marriage of: March 4, 2019
Mandana Khatibi-Entezari, Court of Appeals Case No.
18A-DR-1748
Appellant-Petitioner,
Appeal from the Hamilton
v. Superior Court
The Honorable Jonathan M.
Joseph Entezari, Brown, Judge
The Honorable William P.
Appellee-Respondent.
Greenaway, Magistrate
Trial Court Cause No.
29D02-0807-DR-851
Najam, Judge.
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Statement of the Case
[1] Mandana Khatibi-Entezari (“Mother”) appeals the trial court’s modification of
child support in favor of Joseph Entezari (“Father”). Mother raises five issues
for our review, which we restate as follows:
1. Whether the trial court erred when it found that Father
had overpaid his child-support obligations.
2. Whether the trial court erred when it concluded that the
original child-support order was not an in gross order.
3. Whether the trial court erred when it found that Father
had paid $5,640 in child support directly to Mother rather
than through the clerk of the court.
4. Whether the trial court erred when it made a downward
adjustment to Father’s income.
5. Whether the trial court erred when it found that Father
had satisfied his obligation to pay to Mother one-half of
their accounts.
[2] We affirm.
Facts and Procedural History
[3] Mother and Father were married in January of 1985 and had three children
during their marriage, S.E., A.E., and J.E. In 2008, Mother filed her petition
for the dissolution of the marriage. In April of 2010, the parties entered into a
settlement agreement in the dissolution action, which the trial court adopted in
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its ensuing decree of dissolution. At that time, S.E. had already been
emancipated, A.E. was seventeen years old, and J.E. was seven years old.
[4] The settlement agreement provided in relevant part as follows:
6. SUPPORT. [Father] shall pay to [Mother], through the office
of the Clerk of this Court, a sum to be agreed upon or determined
by the Court for the support and maintenance of [A.E. and J.E.]
. . . It is agreed that child support shall be determined as if
[Father] is paying child support for two (2) children and a
separate calculation shall be made on the assumption that
[Father] is paying child support for (1) child. In those weeks
when [A.E.] is with [Father] for a full week, [Father] shall pay
support to [Mother] on . . . the calculation made for one (1) child.
In those weeks where [A.E.] and [J.E.] are both physically with
[Mother,] [Father] shall pay support to [Mother] on . . . the
calculation made for two (2) children. It is agreed that support
may be paid directly to [Mother] by [Father] . . . , it being the
responsibility of [Father] to keep receipts to show what support
has been paid. . . .
***
20. BANK ACCOUNTS. [Father] shall pay to [Mother], within
ninety (90) days of the date of this agreement, an amount equal
to one[-]half of the balance existing in the savings account,
checking account, and any other bank account as of April 28,
2010. . . .
Appellant’s App. Vol. 2 at 16, 21 (emphases removed).
[5] Attached to the settlement agreement were two child-support worksheets, one
based on support for both A.E. and J.E. and one based on support for only J.E.
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On both worksheets, the parties agreed that Father had a weekly income of
$1,200 and Mother had a weekly income of $290. In its decree, the trial court
accepted the alternating support obligations in accordance with the settlement
agreement and the attached worksheets. In 2017, Mother filed a motion to
show cause in which she alleged that Father had accumulated a child-support
arrearage and had failed to pay on other obligations pursuant to the decree and
settlement agreement. Father, in turn, moved to modify his child-support
obligation.
[6] The trial court held an evidentiary hearing on the competing motions, at which
both Mother and Father testified before the court. In his testimony, Father
stated that he had ceased paying child support for A.E. in January of 2013, after
A.E. had turned twenty-years old, because A.E. had been emancipated as a
matter of law. He also testified that he had paid $5,640 in child support directly
to Mother rather than through the clerk of the trial court. He further testified
that his current income was about half of what it was at the time of the
settlement agreement, which testimony he supported with his tax returns, and
he agreed with Mother’s corresponding testimony that her income was about
double what it was at the time of the settlement agreement. And he testified
that there were no accounts in existence on April 28, 2010, for him to split with
Mother pursuant to paragraph 20 of the settlement agreement.
[7] Thereafter, the trial court entered its order denying Mother’s motion to show
cause and granting Father’s motion to modify child support. In its order, the
trial court found as follows:
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6. [A.E.] was emancipated as a matter of law on July 1, 2012.
7. Thereafter, on January 11, 2013, [Father] began to pay the
amount specifically designated for [J.E.] only . . . .
8. There were also child support payments made by [Father]
directly to [Mother] in the amount of $5,640.00, as allowable by
the Decree and Settlement Agreement.
9. The parties’ child support order was not an in gross,
indivisible support order due to the alternat[ing] provision, the
designation of amounts per child, and the two separate child
support worksheets.
10. No child support arrearage exists, and an overpayment
resulted.
11. The total overpayment of $[8.742.65]1 . . . shall be reflected
as a credit to [Father] against future child support payments.
***
15. There has been no evidence on which the Court can rely to
establish the amount of the bank accounts on . . . April 28,
2010. . . .
16. [Father] has fully satisfied his obligation regarding payment
of half the balance of any bank accounts to [Mother] . . . .
1
The exact amount of Father’s overpayment is based on a subsequent trial court order in which the court
clarified this amount.
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Appellant’s App. Vol. 2 at 43-45 (citations omitted). This appeal ensued.
Discussion and Decision
Standard of Review
[8] Mother appeals the trial court’s modification order. The court’s modification
order includes findings of fact and conclusions thereon following an evidentiary
hearing before the court. We review such judgments under our clearly
erroneous standard of review. Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind.
2015);2 see also Anderson v. Wayne Post 64, Am. Legion Corp., 4 N.E.3d 1200, 1206
n.6 (Ind. Ct. App. 2014) (stating that “our usual review . . . when the trial court
is in the unique position of determining the . . . facts” is for “clear error”), trans.
denied. Under that standard, we engage in a two-tiered review: first, we
“determine whether the evidence supports the findings” and, second, we
determine “whether the findings support the judgment.” K.E. v. Ind. Dep’t of
Child Servs., 39 N.E.3d 641, 646 (Ind. 2015). We consider “[o]nly the evidence
and reasonable inferences that are favorable to the judgment.” Id.Issue One: Father’s Overpayment
[9] Mother asserts that the trial court erred when it found that Father had overpaid
his child support for three reasons. First, Mother asserts that Indiana Code
2
In her brief on appeal, Mother asserts that our review of the modification order is for an abuse of
discretion. But, as our Supreme Court reiterated in Bogner: “This Court has clarified that clear error, and not
abuse of discretion, is the proper standard of review for support modifications.” 29 N.E.3d at 738 n.2 (citing
McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1251-52 (Ind. 1994)).
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Section 31-16-6-6 (2018), which declares that “[t]he duty to support a child
under this chapter . . . ceases when the child becomes nineteen (19) years of
age,” does not apply to A.E. because that statutory language became effective
on July 1, 2012, after the entry of the decree of dissolution. At the time the
court entered the decree of dissolution, the age of emancipation was twenty-one
years old. See I.C. § 31-16-6-6(a) (2010).
[10] This Court has repeatedly rejected arguments such as Mother’s. In Turner v.
Turner, for example, we held that the trial court erred when it “determined that
the language in the dissolution decree—which provided that [the parent] was
obligated to pay child support until [the child] reached the age of twenty-one—
trumped the amended statute . . . .” 983 N.E.2d 643, 648 (Ind. Ct. App. 2013).
And we held that “[t]he trial court had no discretion to go outside the law set
out in the termination of child support statute and to extend [the parent’s] duty
to pay child support beyond what is required by law.” Id.; see also Baker v. Grout,
___ N.E.3d ___, No. 18A-DR-1572, 2018 WL 6441628, at *2-3 (Ind. Ct. App.
Dec. 10, 2018) (holding that, “[n]ot only has [the parent] shown prima facie
error, we also conclude that she has shown that the trial court abused its
discretion when it denied her petition to terminate child support” on facts
similar to those in Turner). For the same reasons, we reject Mother’s argument
here.
[11] Second, Mother argues that the trial court erred in calculating Father’s
overpayment of child support because the court “continued to give credit to
Father for overnights that he admitted he had not exercised.” Appellant’s Br. at
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12. Mother’s argument here appears to be that the court erred in not reducing
the overpayment for times Father would have had custody of J.E., but nothing
in the decree of dissolution allowed Father to reduce his weekly child-support
payment for J.E. based on Father’s exercise of parenting time. And the
modification order is based on evidence that shows Father’s actual payments to
Mother and his weekly support for J.E. in accordance with the settlement
agreement. Thus, we reject this argument.
[12] Third, Mother asserts that the trial court erred both when it calculated Father’s
current income and when it did not find that Father owes a child-support
arrearage. Mother’s argument here is contrary to our standard of review. The
trial court’s findings on both questions are based on the evidence before it,
namely, Father’s testimony and his tax returns, and we will not reweigh the
evidence on appeal. We hold that the trial court did not clearly err when it
found that Father had an overpayment of child support.
Issue Two: In Gross Order
[13] Mother next argues that the trial court erred when it concluded that the child-
support obligation established in the decree of dissolution was not an in gross
order. As we have explained:
An indivisible, in gross order refers to a situation where a parent
is ordered to pay a specified sum of undivided support for more
than one child.
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Under this type of order, the parent must pay the total support
amount until the support payments are modified by court order
or all of the children are emancipated . . . .
Sterrett v. Hartzell, 640 N.E.2d 74, 77 (Ind. Ct. App. 1994) (citations omitted).
[14] Mother’s five-page long argument on this issue is not well taken. The decree of
dissolution was patently not an in gross order for the payment of child support.
Rather, as the trial court found, the original child-support order was explicitly
divided between payments for both A.E. and J.E. and payments for only J.E.
Accordingly, we affirm the trial court’s judgment on this issue.
Issue Three: Father’s Payments Directly to Mother
[15] Next, Mother asserts that the trial court erred when it credited $5,640 in child-
support payments to Father. According to Mother, Father’s child-support
payments were made to the clerk of the trial court, and Father’s additional
payments directly to her were for other expenses.
[16] Again, Mother’s argument is not well taken. Although the settlement
agreement provided that Father could make child-support payments to the
clerk, it also provided that he could make them directly to Mother. And he
testified that he did so in the amount of $5,640, which testimony the trial court
credited over Mother’s testimony and evidence. We cannot say that the trial
court erred on this issue.
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Issue Four: Father’s Current Income
[17] Mother next asserts that the trial court erred when it found that Father’s current
income is less now than it was at the time of the decree of dissolution. Insofar
as Mother’s argument here is different than her argument under Issue One, we
note that Mother’s argument here is nothing more than a request for this Court
to reweigh the evidence that was before the trial court, which we cannot do.
The trial court’s finding is supported by the evidence before it, and we affirm on
this issue.
Issue Five: Division of Bank Accounts
[18] Finally, Mother argues that the trial court erred when it found that Father had
fully satisfied his obligation to pay to Mother one-half of the parties’ accounts
within ninety days of the entry into the settlement agreement. But the trial
court explicitly stated that it did not find Mother’s evidence on this question
reliable and, instead, the trial court relied on Father’s testimony that he had
satisfied his obligations. We are in no position to reconsider or reweigh the
evidence as Mother argues. We affirm the trial court on this and all other
issues.
[19] Affirmed.
Pyle, J., and Altice, J., concur.
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