In Re The Marriage of Kathryn Y. Huffer and Charles C. Dorton, Kathryn Y. Huffer v. Charles C. Dorton

Pursuant to Ind.Appellate Rule 65(D), Aug 30 2013, 5:22 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
KATHRYN HUFFER WILLIAM O. HARRINGTON
Naples, Florida Harrington Law Office, P.C.
Danville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF )
KATHRYN Y. HUFFER and )
CHARLES C. DORTON, )
)
KATHRYN Y. HUFFER, )
)
Appellant-Petitioner, )
)
vs. ) No. 32A01-1212-DR-583
)
CHARLES C. DORTON, )
)
Appellee-Respondent. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Robert J. Lowe, Special Judge
Cause No. 32D05-0706-DR-67
August 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Kathryn Y. Huffer (Mother) appeals modification of child support for her children
with Charles C. Dorton (Father). Mother presents multiple issues for our review, which we
consolidate and restate as:
1. Whether the evidence supports the trial court’s findings regarding Father’s
income;
2. Whether the evidence supports the trial court’s findings regarding Mother’s
income;
3. Whether the trial court erred when it modified Father’s child support
obligation; and
4. Whether the trial court erred when it retroactively applied the reduction of
Father’s child support.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother and Father married on November 30, 1996. Two children were born of the
marriage – G.D., born July 13, 1998, and R.D., born March 28, 2001. Mother and Father
divorced on December 3, 2003. As part of the stipulated dissolution decree, the court granted
Mother full legal and physical custody, and granted Father parenting time pursuant to a
shared parenting time schedule to which both parties agreed. The court also ordered Father
to pay $650.00 a week in child support and maintain healthcare coverage for the children.
On July 18, 2005, Father filed a petition to modify child support and parenting time,
arguing Mother’s enrollment in college and the children’s enrollment in private school
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negated the need for an in-home nanny, and thus there was a significant change in
circumstances requiring a modification of Father’s child support obligation. On January 24,
2006, Mother filed a cross-petition to modify child support, arguing her enrollment in college
caused her income to be reduced and resulted in additional childcare and schooling expenses.
After hearings on the competing motions, the court declined to modify child support.
On March 31, 2009, Mother filed a verified notice of intent to relocate to Naples,
Florida, because Mother planned to attend the Ave Maria Law School, which had provided
Mother with a $25,000.00 scholarship. On the same date, the parties filed a Relocation
Agreement1 in which both agreed to Mother’s relocation and to modification of Father’s
parenting time. The parties did not modify child support as part of their agreement, though
Father agreed to pay half of the additional costs of exercising parenting time with the
children after they moved to Naples.
On January 20, 2012, Father filed a petition to modify custody and child support. The
court held a hearing on the matter on May 30, 2012, and granted Mother’s request to transfer
the custody matters to Collier County, Florida, where Mother and children reside. The
support matter remained in Hendricks County. On September 25, Mother filed a motion for
special findings and conclusions of law on the child support issue, which the Hendricks
1
While both parties cite the Appellant’s Appendix as the location of this agreement, some of the pages
referenced, specifically pages 40 and 41, are not in the Appellant’s Appendix. While we were able to discern
the contents of the order from what exists of the rest of the agreement, the missing pages hindered our review
of the record, and we remind Mother that even a pro se litigant is required to observe the Indiana Rules of
Appellate Procedure. See Ind. Appellate Rule 50(B)(2)(f) (The Appellant’s appendix shall contain “pleadings
and other documents from the Clerk's Record in chronological order that are necessary for resolution of the
issues raised on appeal.”).
3
County court granted. The court held a hearing on October 19, 2012, on the child support
issue, and requested proposed findings of fact and conclusions of law from both parties. The
court entered an order on November 26 that reduced Father’s child support obligation to
$474.00 per week and ordered that modification as of January 20, the date Father filed his
petition for modification. The court found Father overpaid Mother $7,392.00 in child
support while the modification proceedings were pending and, therefore, reduced Father’s
modified child support obligation by $50.00 until the overpayment credit was exhausted.
This appeal ensued.
DISCUSSION AND DECISION
We first note Mother proceeds in this appeal pro se. A litigant who proceeds pro se is
held to the same established rules of procedure that trained counsel is bound to follow. Smith
v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed. One
risk a litigant takes when she proceeds pro se is that she will not know how to accomplish all
the things an attorney would know how to accomplish. Id. When a party elects to represent
herself, there is no reason for us to indulge in any benevolent presumption on her behalf or to
waive any rule for the orderly and proper conduct of her appeal. Foley v. Mannor, 844
N.E.2d 494, 502 (Ind. Ct. App. 2006).
Where, as here, a party requested findings and conclusions under Indiana Trial Rule
52(A), our standard of review is well-settled. We must determine first whether the evidence
supports the findings and, second, whether the findings support the judgment. Maxwell v.
Maxwell, 850 N.E.2d 969, 972 (Ind. Ct. App. 2006), reh’g denied, trans. denied. We will
4
disturb the judgment only where there is no evidence supporting the findings or the findings
do not support the judgment. Id. We do not reweigh the evidence, and we consider only the
evidence favorable to the judgment. Id. The appellant must establish the findings are clearly
erroneous, which occurs only when a review of the record leaves us firmly convinced a
mistake has been made. Id. We defer substantially to findings of fact, but we do not defer to
conclusions of law. Id. A judgment is also clearly erroneous if it relies on an incorrect legal
standard. Id. When a party requests findings and conclusions, a trial court is required to
make complete special findings sufficient to disclose a valid basis under the issues for the
legal result reached in the judgment. Id. The purpose of Rule 52(A) findings and
conclusions is to provide the parties and reviewing courts with the theory on which the case
was decided. Id.
1. Findings Regarding Father’s Income
In modifying Father’s child support obligation, the trial court made detailed findings
regarding Father’s income:
3. Under the terms of the [Dissolution] Decree, Father was ordered to pay
Mother child support in the amount of $650.00 per week (hereinafter,
the “Current Child Support Order”). A Child Support Obligation
Worksheet, signed by both Mother and Father, was part of the Decree.
It showed weekly gross income of $3,462.00 for Father and $500.00 for
Mother as of December 3, 2003.
*****
4. The Current Child Support Order has never been modified. However,
Father filed a previous request for modification in 2005. After a
contested hearing in Hendricks Superior Court No. 3, Judge Karen M.
Love presiding, the Court issued an Order on February 22, 2006
denying the request. In said Order the Court found Father’s weekly
gross income to be $3,875.00 and imputed $400.00 per week to Mother.
*****
5
13. Father is the sole shareholder and President of KC Copy, Inc.
(hereinafter, “KC Copy”). KC Copy is a subchapter-S corporation. KC
Copy is a PIP printing franchise located in Avon, Indiana. This is the
same business which he owned and from which he derived his income
in 2003 [when the original dissolution decree was entered].
14. In 2009, KC Copy paid Father a salary in the amount of $39,988.00.
Father received a K-1 from KC Copy in 2009 in the amount of
$66,382.00, reflecting the net profit from the operation of KC Copy in
2009. The total of Father’s non-passive income (K-1 plus non-passive
loss plus Section 179 depreciation) from KC Copy in 2009 was
$75,884.00.
15. In 2010, KC Copy paid Father a salary in the amount of $39,980.00.
Father received a K-1 from KC Copy in 2010 in the amount of
$45,060.00, reflecting the net profit from the operation of KC Copy in
2010. The total of Father’s non-passive income (K-1 plus non-passive
loss plus Section 179 depreciation) from KC Copy in 2010 was
$109,716.00.
16. In 2011, KC Copy paid Father a salary in the amount of $43,487.00.
Father received a K-1 from KC Copy in 2011 in the amount of
$33,252.00, reflecting the net profit from the operation of KC Copy in
2011. The total of Father’s non-passive income (K-1 plus non-passive
loss plus Section 179 depreciation) from KC Copy in 2011 was
$92,487.00.
17. At the time that Father filed the Pending Motion, Father’s 2012 salary
from KC Copy was based on $43,487.00 for that year. Later in 2012,
Father’s salary from KC Copy increased to approximately $60,000.00.
Father also receives additional income as a member of the Board of
Directors of his local Conservancy District in the amount o[f] $100.00
for each meeting attended. Income from this source totaled $1,400.00
in 2011.
18. Father has been married and divorced and married again since his
marriage to Mother ended. As a result of the most recent divorce
Father is paying $2,075.00 per month in maintenance for a period of
five years from August, 2011. Father’s current wife is an employee of
KC [C]opy. Because Father’s living expenses, including Father’s
obligation to satisfy the Current Child Support Order, exceed Father’s
salary, Father has taken distributions from KC Copy, even when KC
Copy could not afford for Father to take those distributions.
19. In 2010, Father took excess distributions from KC Copy in the amount
of $142,260.00. In 2011, Father took excess distributions from KC
Copy in the amount of $97,900.00. The accountant for KC Copy, Jeff
Donovan, characterizes these excess distributions as shareholder loans
6
receivable. Father has executed Promissory Notes reflecting that these
excess distributions are loans from KC Copy to Father. As Father is
sole shareholder of KC Copy, any legal obligation to repay is illusory,
but there could be serious tax consequences if repayment does not
occur within the time allowed by IRS rules.
20. In late 2011, KC Copy lost two (2) of its largest customers, which
accounted for more than $150,000.00 per year of gross revenue to KC
Copy.
21. In 2009, the gross income of KC Copy was $840,946.00. In 2010, the
gross income decreased to $717,884.00. In 2011, the gross income of
KC Copy increased to $750,010.00. Through August 2012, the gross
income of KC Copy was $425,238.00, which annualizes to
$637,857.00.
22. KC Copy defaulted on its line of credit to National Bank of
Indianapolis in the amount of $50,000.00. Therefore, National Bank
of Indianapolis did not renew the line of credit. Father has personally
guaranteed that obligation.
23. In 2010, KC Copy borrowed $150,000.00 from National Bank of
Indianapolis because KC Copy needed some operating capital. KC
Copy still owes National Bank of Indianapolis $88,000.00, which
Father has also personally guaranteed.
24. Father has personal credit card debt in the amount of approximately
$41,000.00. All of Father’s personal credit card accounts have been
closed. Father pays $900.00 per month toward a consolidated loan that
paid off the credit cards.
25. Father is the 51% owner of Henco Partners, LLC (hereinafter “Henco
Partners”) the company that owns the real estate and building in Avon,
Indiana, where KC Copy is operated (hereinafter, the “Henco Partners
Real Estate”). The 49% owner is Dayvon Investments, LLC, a
company solely owned by James Tolley (hereinafter, “Mr. Tolley”).
26. There are two mortgages against the Henco Partners Real Estate. The
total monthly mortgages payment, including real estate taxes, is
approximately $6,500.00 (hereinafter, the “Henco Mortgage Payment”).
27. KC Copy pays $4,500.00 per month in rent to Henco partners for the
use of the building.
28. Under the terms of the Henco Partners Operating Agreement, Father
and Mr. Tolley are each obligated to make a capital contribution to
Henco Partners in the amount of $1,000.00 per month so that Henco
Partners will have the funds necessary to make the Henco Mortgage
Payment.
29. Starting in October 2011, Father did not have sufficient income to make
his monthly capital contribution to Henco Partners. Since October
7
2011, Mr. Tolley has been making a $2,000.00 per moth capital
contribution to Henco Partners, loaning $1,000.00 to Father.
30. Father has never received any income or distribution from Henco
Partners. However, the value of his interest in it is obviously increasing
as the mortgages on the real estate it owns are paid down.
31. The records from Father’s bank accounts show that since at least the
fall of 2011, Father has maintained a very minimal, and often negative,
balance and regularly incurred overdraft fees. On a regular basis,
Father has withdrawn amounts from the checking accounts on a
monthly basis greater than the monthly deposits.
32. Through August 4, 2012, Father took distributions from KC Copy in
the amount of $39,847.94, which annualizes to approximately
$66,840.00.
33. As further evidence of the difficult financial circumstances of KC
Copy, through August 4, 2012, Father made short-term loans to KC
Copy in the amount of approximately $41,500.00 so that KC Copy
would have sufficient cash flow to meet payroll and other obligations.
Those short-term loans were repaid by KC Copy within a few days as
funds became available. The records of KC Copy refer to those short-
term loan repayments as “loan payback[.]”
34. Father has two (2) older children, [S] and [C], and pays their mother
$115.00 [a week] in child support. Although the Court Order in that
case only requires Father to pay support forty-eight (48) weeks per year,
Father pays $115.00 year round. This was the situation at the time of
the Decree in 2003, and has remained so.
35. Father pays $642.66 per month in health insurance premium[s] for his
four (4) children, including [G.D. and R.D.]. The portion of the
premium attributable to [G.D. and R.D.] is $321.33 per month, or
$74.73 per week.
36. Father exercises approximately 52 overnights of parenting time per year
with [G.D. and R.D.].
37. Because of Mother’s relocation to Naples, Florida, Father incurs an
average of $1,500.00 per year in travel expense for [G.D. and R.D.] to
exercise parenting time with Father. This amount averages to $28.85
per week. However, Father consented to this arrangement, and the
agreement approved by the Court did not provide that these travel
expenses would affect his child support. Therefore, the Court finds that
Father is not entitled to any credit for travel expenses toward his child
support.
*****
41. Father pays $95.00 per pay period, or $190.00 per month, for the cost
of his personal health insurance premiums. KC Copy pays
8
approximately $250.00 per month, or $58.14 per week, for the cost of
Father’s personal health insurance premiums. This amount should be
imputed to Father as “in-kind” income.
42. KC Copy paid $2,338.00 in 2011 for the cell phone that Father uses for
work and personal use. Father estimated that 70% of the use is
personal. Therefore, KC Copy pays $31.47 per week for Father’s
personal use of the cell phone. This amount should be imputed to
Father as “in-kind” income.
43. The health insurance premiums and cell phone payments are the only
regular, personal living expenses of Father that Father concedes are
paid by KC Copy. Mother maintains that there is much, much more in
the KC Copy list of expenses that should be included as income to
Father for purposes of calculating child support (Petitioner’s Proposed
Findings of Fact and Conclusions Thereon). Indeed, for the most part,
the KC Copy expenses appearing on the balance sheets are not backed
up by additional receipts or documentation that they are, for purposes of
the calculations made here, legitimate deductions from gross receipts.
*****
53. The parties submit widely divergent facts and inferences to be drawn
from them: Father claims that his weekly income is $2,663.61; Mother
[claims] that it is $9,262.60. . . . Father requests support be decreased
to $323.45 per week retroactive to January 20, 2012; Mother requests
increase to $1,071.00 per week.
54. The nature of the business which is the primary source of Father’s
income is such that a precise figure for gross weekly income cannot be
arrived at by unassailable deduction from indubitably established facts.
Nevertheless, for purposes of child support calculation, one must be
determined, and there exists much evidence in the record from the most
recent hearings and in the Court file going back to at least 2003 (which
the undersigned has reviewed and taken judicial notice of), from which
to draw a conclusion. The Court particularly notes that Father admits
that there exist multiple assumptions about how support may be
calculated (10 alternative Proposed Child Support Worksheets
comprising Respondent’s Exhibit HH), and that his accountant, Jeff
Donovan, conceded on cross-examination that Father’s real gross
income exceeds his stated income for tax purposes and is closer to
approximately $200,000.00 per year. After giving consideration to all
of this evidence, and after paying particular attention to what may and
may not be reasonably considered a necessary business expense or “in-
kind” income, the court finds Father’s average gross weekly income to
be $3,800.00. In doing so, the Court does not doubt the precariousness
of Father’s present financial position, but finds that the problems he is
9
facing are mostly due to bad personal decisions not relevant to the
determination of child support, which is, we must always be reminded,
for the benefit of the children.
(App. at 25, 27-34.) Mother argues “it is impossible to determine the basis for the trial
court’s decision from the findings, namely what the trial court included in Father’s income
and how it calculated Father’s income. The court’s stated income for Father should be
reversed and refigured according to the evidence on the record.” (Br. of Appellant at 15.)
We disagree.
For the purpose of determining parental income in accordance with the Indiana Child
Support Guidelines, “weekly gross income” is broadly defined:
1. Definition of Weekly Gross Income (Line 1 of Worksheet). For purposes of
these Guidelines, “weekly gross income” is defined as 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.
Social Security disability benefits paid for the benefit of the child
must be included in the disabled parent’s gross income.
*****
2. Self-Employment, Business Expenses, In-Kind Payments and Related Issues.
Weekly Gross Income from self-employment, operation of a business, rent,
and royalties is defined as gross receipts minus ordinary and necessary
expenses. In general, these types of income and expenses from self-
employment or operation of a business should be carefully reviewed to restrict
the deductions to reasonable out-of-pocket expenditures necessary to produce
income. These expenditures may include a reasonable yearly deduction for
necessary capital expenditures. Weekly Gross Income from self-employment
may differ from a determination of business income for tax purposes.
10
Expense reimbursements or in-kind payments received by a parent in the
course of employment, self-employment, or operation of a business should be
counted as income if they are significant and reduce personal living expenses.
Such payments might include a company car, free housing, or reimbursed
meals.
Ind. Child Support Guidelines 3(A)(1)-(2). The trial court enjoys wide discretion in imputing
income to the child support obligor to ensure that he does not evade his support obligation.
Glover v. Torrence, 723 N.E.2d 924, 936 (Ind. Ct. App. 2000).
The trial court made detailed findings regarding Father’s personal and business
finances. Mother does not dispute there is evidence in the record to support those findings.
She instead argues it is unclear how the trial court used those findings to determine Father’s
weekly income. To support the trial court’s imputation to Father of $3,800.00 in weekly
gross income, the court must have determined his yearly income was $197,600. In its
findings, the trial court discussed Father’s actual yearly income for the past three years, as
well as all in-kind payments and disbursements taken from Father’s businesses. It noted
Father’s accountant’s testimony that Father’s income is near $200,000 per year. Considering
Father’s income in past years, all of which amounts were well below $200,000.00, the in-
kind payments, and Father’s accountant’s testimony, we cannot find error in the trial court’s
imputation to Father of $3,800.00 in weekly gross income. See Ratliff v. Ratliff, 804 N.E.2d
237, 246 (Ind. Ct. App. 2004) (holding no abuse of discretion when income determined based
on the evidence).
2. Findings Regarding Mother’s Income
In modifying Father’s child support obligation, the trial court made detailed findings
11
regarding Mother’s income:
3. Under the terms of the [Dissolution] Decree, Father was ordered to pay
Mother child support in the amount of $650.00 per week (hereinafter,
the “Current Child Support Order”). A Child Support Obligation
Worksheet, signed by both Mother and Father, was part of the Decree.
It showed weekly gross income of $3,462.00 for Father and $500.00 for
Mother as of December 3, 2003.
*****
4. The Current Child Support Order has never been modified. However,
Father filed a previous request for modification in 2005. After a
contested hearing in Hendricks Superior Court No. 3, Judge Karen M.
Love presiding, the Court issued an Order on February 22, 2006
denying the request. In said Order the Court found Father’s weekly
gross income to be $3,875.00 and imputed $400.00 per week to Mother.
*****
7. In 1998, Mother earned $18.00 per hour or $720.00 per week.
8. Mother has not worked on a full-time basis since 2006.
9. Mother attended Indiana University-Purdue University Indianapolis
from the fall of 2006 through May 2009, when she graduated with a
B.A. in Communication Studies. Mother graduated with Highest
Distinction and a G.P.A. of 3.91/4.00.
10. Mother moved to Naples, Florida, during the summer of 2009 with
[G.D. and R.D.]. Father agreed to this move, though he believes that he
was promised that they would all move back in three years.
11. Mother commenced her first year of law school at Ave Maria Law
School in Naples, Florida, in August 2009. Mother received a
$25,000.00 per year scholarship. Mother lost her scholarship because
she failed to maintain a G.P.A. of 3.0. Although the law school gave
Mother a second chance to retain her scholarship, Mother again failed
to maintain a G.P.A. of 3.0. After Mother lost her scholarship, she took
a leave of absence from the law school with intent to return. Mother
should have graduated from law school in May 2012. However, due to
her two semesters of absence, she is not scheduled to graduate from law
school until May 2013.
12. Mother is currently self-employed. She owns and operates a wedding
business called Beach Promises, LLC. In 2011, Mother’s gross
[annual] income from her wedding business was $1,423.00. In 2012,
Mother’s current gross weekly income from the operation of her
wedding business is $164.49 per week. The work is part time with
flexible hours. She has minimal assets and approximately $150,000.00
in student loan debt. However, she is able to devote significant time to
12
volunteer work for her church, and testified that she contributes $564
per month to it.
*****
39. Mother has incurred travel expenses to attend the Hearing in the
amount of $986.17. However, these are a direct result of her choice to
relocate to Florida.
40. Mother has incurred attorney fees related to the Pending Motion in the
amount of approximately $4,000.00. Additional attorney fees incurred
in the amount of approximately $6,000.00 are attributable to the
pending petition for modification of custody. Due to her economic
circumstances, it will be very difficult to pay these fees.
*****
44. Mother did not make a claim for child and dependent care expenses on
her 2011 form 1040.
45. For four (4) months and two (2) weeks during 2012, Mother paid
approximately $10.00 per week in child care expense for [R.D.] due to
Mother’s class schedule in law school.
46. However, at the last hearing Mother reported a problem that [R.D.] had
at school during the week of October 8, 2012 leading her to believe that
she cannot be trusted left alone. Father agrees that she should not be
left alone. Mother testified that she will now be forced to hire child
care and that will cost $199.00 per week.
47. Since the beginning of the 2012-2013 school year, [R.D.] has walked
approximately one (1) mile each direction to get to and from school.
[R.D.] gets out of school at 4:05 p.m.
48. Mother has law school classes only three (3) days per week: Monday,
9:30 a.m. to 3:15 p.m.; Wednesday, 9:30 a.m. to 5:15 p.m., and
Thursday, 3:20 p.m. to 5:50 pm. The law school is only ten (10)
minutes from Mother’s apartment in Naples, Florida.
49. [G.D.] is fourteen (14) years old and capable of providing short-term
care for [R.D.].
50. There are only two (2) days each week, Wednesday and Thursday,
when Mother is not home from law school when [R.D.] gets home.
Mother arrives home less than two (2) hours later than [R.D.] on each
of those two (2) days.
51. [G.D.] has marching band on Tuesday and Thursday from 6:00 p.m. to
8:15 p.m. Therefore, on both Wednesday and Thursday, [G.D.] is
capable of being at home to watch [R.D.] until Mother arrives home.
52. The evidence does not support a finding that Mother is incurring work-
related child care expenses with respect to [G.D.] and [R.D.] in the
amount of $199.00 per week. The Court finds that a reasonable amount
for child care expense for child support purposes is $50.00 per week.
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53. The parties submit widely divergent facts and inferences to be drawn
from them: . . . Mother claims that the appropriate weekly income
figure for her is her actual average income of $164.49; Father claims
that the greatest amount she earned while working full time ($720.00)
should be imputed to her.
*****
55. Mother is voluntarily underemployed because she elected to attend law
school instead of pursuing full-time employment. On the other hand,
she is investing in her financial future and that of her children by
pursing a law degree. Further, whatever the moral value of contributing
money and volunteer time to charity may be, the Court notes that her
first financial obligation is to her children. For the purposes of
calculating child support, the Court attributes to Mother a gross weekly
income [of] $290.00 per week, based upon minimum wage.
(Appellant’s App. at 25-27, 31-34.) Mother argues the trial court erred when it imputed to
her additional income because she is not underemployed, and even if she is, she is not so
without just cause because she has been pursuing her law degree in lieu of obtaining full-time
employment. We disagree.
Indiana Child Support Guideline 3(A)(3) states, in relevant part:
If a court finds that a parent is voluntarily unemployed or underemployed
without just cause, child support shall be calculated based on a determination
of potential income. A determination of potential income shall be made by
determining employment potential and probable earnings level based on the
obligor’s work history, occupational qualifications, prevailing job
opportunities, and vocational training, the facts of the case may indicate that
Weekly Gross Income be set at least at the federal minimum wage level.
“The guidelines give the trial court wide discretion to impute potential income to a parent
when the trial court is convinced the parent’s unemployment or underemployment has been
contrived for the sole purpose of evading support obligations.” Turner v. Turner, 785 N.E.2d
259, 265 (Ind. Ct. App. 2003). “Where a parent is unemployed or underemployed for a
14
legitimate purpose other than avoiding child support, there are no grounds for imputing
potential income.” Trabucco v. Trabucco, 944 N.E.2d 544, 550 (Ind. Ct. App. 2011), trans.
denied. While it is true the trial court did not explicitly state Mother’s underemployment was
for the sole purpose of avoiding child support, the commentary to Ind. Child Supp. Guideline
3(A)(3) directs the trial court to consider:
When a parent has some history of working and is capable of entering the work
force, but voluntarily fails or refuses to work or to be employed in a capacity in
keeping with his or her capabilities, such a parent’s potential income should be
determined to be a part of the gross income of that parent. The amount to be
attributed as potential income in such a case would be the amount that the
evidence demonstrates he or she was capable of earning in the past.
In the instant case, the trial court’s finding that Mother was underemployed because
she chose to pursue a law school degree, which the court noted was a worthy endeavor, was
offset by Mother’s choice to volunteer and donate a large sum of her monthly earnings to
charity. Mother reported an income of $164.49 per week, and also reported she donates $564
per month, or approximately 86% of her total monthly income, to charity. Mother has an
undergraduate degree with high honors and a Florida teaching certificate, and Father
presented evidence she had in the past earned $18 per hour. As the court notes, “her first
financial obligation is to her children[,]” (App. at 34), and we cannot find an abuse of
discretion in the court’s determination that Mother attempted to avoid her child support
obligation by volunteering at church rather than obtaining paid employment. The trial court
did not err in imputing income to Mother consistent with the Indiana Child Support
Guidelines. See In re Marriage of Turner v. Turner, 785 N.E.2d 259, 264 (Ind. Ct. App.
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2003) (no abuse of discretion where evidence supported court’s decision to impute income).
3. Modification of Father’s Child Support Obligation
Appellate courts give considerable deference to trial court findings in family law
matters. MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). We recognize the
trial judge “is in the best position to judge the facts, to get a feel for the family dynamics, to
get a sense of the parents and their relationship with their children -- the kind of qualities that
appellate courts would be in a difficult position to assess.” Id. Appellate decisions that
modify the trial court’s decision are especially disruptive in the family law setting. Id.
Child support calculations are made utilizing the income shares model set forth in the
Indiana Child Support Guidelines. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App.
2004). These Guidelines apportion the cost of supporting children between the parents
according to their means. Id. A calculation of child support under the Guidelines is
presumed valid. Id. Therefore, we will not reverse a support order unless the determination
is clearly against the logic and effect of the facts and circumstances. Id. When reviewing a
child support order, we do not assess credibility or re-weigh evidence; we confine our review
to the evidence and reasonable inferences therefrom favorable to the trial court’s decision.
Id.
Father, as the party requesting modification of child support, bears the burden of
proving modification is appropriate. Saalfrank v. Saalfrank, 899 N.E.2d 671, 675 (Ind. Ct.
App. 2008). Pursuant to Ind. Code § 31-16-8-1(b), child support may be modified only:
(1) upon a showing of changed circumstances so substantial and continuing as
to make the terms unreasonable; or
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(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.
Mother argues modification is not appropriate pursuant to Ind. Code § 31-16-8-
1(b)(2), because Father, the party requesting the modification, had not been ordered by the
court to pay more than 20% more support than what would be required under the Indiana
Child Support Guidelines. In addition, she contends Father did not demonstrate “changed
circumstances so substantial and continuing as to make the terms [of the child support order]
unreasonable.” Ind. Code § 31-16-8-1(b)(1). We disagree.
As stated by our Indiana Supreme Court, Ind. Code § 31-16-8-1(b) is written in the
disjunctive in order to provide an avenue for support modification when the amount ordered
does not differ by 20% from the Indiana Child Support Guidelines:
Our interpretation of the Legislature’s action in 1997 is that it wanted to
provide a bright-line for parents and for courts as to when a parent would be
entitled to modification in his or her child support obligation solely on grounds
of change in income. The Legislature seems to be saying that if more than a
year had passed since the last modification, and one parent’s income has
changed so much that his or her obligation under the Child Support Guidelines
would change by 20%, a parent is entitled to modification. The Legislature
left in place the opportunity for a parent to request modification at any time
and for any reason so long as - but only if - the parent could show changed
circumstances “so substantial and continuing as to make the terms [of the prior
order] unreasonable.” Ind. Code § 31-16-8-1(1) (2004).
In addition to providing a bright-line test for a parent who seeks
modification solely on grounds of change in income, it seems to us that, as a
practical matter, the Legislature has effectively established a bifurcated
standard for modification, Subsection (2) covering situations where a parent
seeks modification solely on grounds of change in income and Subsection (1)
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covering all other situations (including situations alleging a change in income
and one or more other changes). It is true that, as a matter of pure logic, a
parent could seek modification solely on grounds of change in income under
Subsection (1) - indeed, Father does so here. But we do not believe that the
Legislature would consider a change in circumstances standing alone (i.e.,
without any other change in circumstances) that would change one parent’s
child-support payment by less than 20% to be “so substantial and continuing as
to make the terms [of the prior order] unreasonable.” Indeed, it is hard to see
the reason the Legislature would have enacted subsection (2) at all if a parent
could receive a modification under Subsection (1) where the only changed
circumstance alleged would change one parent’s payment by less than 20%.
MacLafferty, 829 N.E.2d at 941-42. Therefore, Father must prove there were other factors
besides his change in income to warrant a modification in child support. Id. at 942.
Father presented evidence of changes from the original divorce decree including:
Father’s income, Mother’s income and earning potential, the age of the children, the distance
Father was required to travel to exercise parenting time, the frequency with which Father
could exercise his parenting time, work-related child care costs, and health insurance
premiums for which Father did not receive credit as part of the original child support
agreement. Based on this evidence, we cannot say the trial court erred when it modified
Father’s child support obligation. Father demonstrated a change in circumstances so
substantial as to warrant the modification. See Elbert v. Elbert, 579 N.E.2d 102, 112-13 (Ind.
Ct. App. 1991) (affirming modification supported by change in circumstances, including ages
of children, residency, and income).
4. Retroactive Reduction of Father’s Child Support Obligation
“A trial court has discretion to make a modification of child support relate back to the
date the petition to modify is filed, or any date thereafter.” Becker v. Becker, 902 N.E.2d
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818, 820 (Ind. 2009). In Quinn v. Threlkel, 858 N.E.2d 665, 674 (Ind. Ct. App. 2006), we
held, “Allowing courts discretion in making the modification of child support effective as of
the date of the petition is filed may serve to avoid dilatory tactics.” Id. (quoting Talarico v.
Smithson, 579 N.E.2d 671, 673 (Ind. Ct. App. 1991)). Mother argues that since there were
no such tactics in this particular action, then the trial court abused its discretion when it
retroactively modified Father’s child support obligation back to the date he filed his petition
to modify. However, Quinn does not require there be “dilatory tactics” in order for a
modification to be applied retroactively, nor will we impute such a limitation on the
discretion of the trial court. Accordingly, we hold the trial court did not abuse its discretion
when it retroactively applied the reduction in Father’s child support obligation to the date on
which he filed his petition to modify. See Becker, 902 N.E.2d at 820 (“A trial court has
discretion to make a modification of child support relate back to the date the petition to
modify is filed, or any date thereafter.”).
CONCLUSION
The trial court did not err when it determined the incomes of Mother and Father,
reducing Father’s child support obligation, or ordering retroactive modification of Father’s
child support obligation. Accordingly, we affirm.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
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