Opinion
No. 29A02-1009-JP-1111
10-25-2011
D.C., Appellant-Petitioner, v. J.J., Appellee-Respondent.
D.C. Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), 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:
D.C.
Indianapolis, Indiana
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Wayne A. Sturtevant, Judge
Cause No. 29D05-0708-JP-1382
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM , Judge
STATEMENT OF THE CASE
D.C. ("Mother") and J.J. ("Father") are the parents of J.B.J., a minor. After Father's paternity was established by decree, both parties moved the court to modify the decree. Mother appeals the trial court's order modifying the decree following a hearing, and she raises several issues on appeal, which we consolidate and restate as:
1. Whether the trial court abused its discretion when it denied Mother's request that Father pay for child care expenses.
2. Whether the trial court abused its discretion when it calculated the parties' incomes for purposes of determining Father's child support obligation.
3. Whether the trial court abused its discretion when it gave Father a credit for providing health insurance for J.B.J.
4. Whether the trial court abused its discretion when it denied Mother's request that Father pay his share of J.B.J.'s extraordinary medical expenses.
5. Whether the trial court abused its discretion when it denied Mother's request that Father pay for certain unreimbursed medical expenses.
6. Whether the trial court abused its discretion when it denied Mother's request that Father pay her attorney's fees in full.
7. Whether the trial court abused its discretion when it did not order Father to pay interest on his child support arrearage.
We affirm in part, reverse in part, and remand with instructions.
Mother lists fifteen issues in her brief on appeal. We consolidate some of those issues, and we decline to address others. For example, Mother states her "relief sought" at the end of each argument section, and at the end of three of those sections, she asks only that we "delete [the trial court's] comment[s]" with respect to those issues in the modification order. But Mother has not demonstrated any prejudice to her as a result of the challenged comments, so she is not entitled to relief. Further, Mother challenges the trial court's finding that the parties shall conduct parenting time exchanges at a police or fire station. But Mother's argument amounts to a request that we reweigh the evidence, which we will not do. Finally, Mother mentions one issue that she then acknowledges is "moot," leaving us nothing to consider. Brief of Appellant at 29.
FACTS AND PROCEDURAL HISTORY
On August 15, 2007, Mother filed a petition to establish Father's paternity of J.B.J., who was born December 21, 2006. Father ultimately admitted his paternity of J.B.J., and the parties asked the trial court to determine issues of custody, visitation, and child support. Following a hearing, the trial court awarded Mother sole legal and primary physical custody of J.B.J., and the court granted Father visitation pursuant to the Indiana Parenting Time Guidelines, with only minor deviations, including overnight visitation. And the trial court determined Father's child support obligation retroactive to July 13, 2007, and going forward. The trial court determined that Father had a child support arrearage totaling $20,410. And from the date of the decree going forward, Father was obligated to pay $355 per week in child support. Finally, the trial court ordered Father to pay Mother's attorney's fees in the amount of $5,105.
Mother immediately filed a verified petition for modification of parenting time and child support, alleging that J.B.J.'s "needs," "diet," "expenses," and "medical insurance coverage needs" had all changed since the decree was entered. Appellant's App. at 15. In particular, J.B.J. was diagnosed with a medical condition that required a special diet, and Mother's expenses for food for J.B.J. had increased substantially. Both parties also filed motions to correct error. Following a hearing, the trial court issued an amended paternity decree.
Father then filed a verified petition to modify legal custody and moved for a change of venue, and the parties selected a special judge to preside over the proceedings. The trial court ordered the parties to mediation, which was unsuccessful. Mother filed a verified motion for relief from judgment under Trial Rule 60(B), alleging that Father submitted "incorrect income information" to the trial court, which was "simply a mistake or excusable neglect" by Father. Appellant's App. at 17. In the alternative, Mother alleged that she was entitled to relief from judgment due to "fraud, misrepresentation, other misconduct of Father, and/or other reasons." Id. The trial court subsequently granted Father's motion to dismiss Mother's 60(B) motion.
On November 6, 2009, and February 25, 2010, the trial court held a hearing on several pending motions, including the parties' competing motions to modify the decree and Mother's motions to compel discovery and for rule to show cause. The trial court issued the following detailed findings and conclusions:
To the extent Mother contends that she was prejudiced by the trial court's addressing all pending motions at the hearing, we are not persuaded.
Brief of Appellant at 32-45. This appeal ensued.
Verified Modification of Parenting Time
4. Mother by Petition and Father at trial have both requested the Court modify its Parenting Time Order. Mother has sought to modify the order and has requested that Father have no overnight parenting time with the minor child. Father has requested the Court set an exchange location at either a police or fire station.
5. Under I.C. 31-14-14-2, a court may modify parenting time whenever that modification would serve the best interests of the child. However, I.C. 31-14-14-1 provides that a non-custodial parent is entitled to reasonable parenting time unless the court finds after a hearing that the parenting time might (1) endanger the child's physical health and well-being, or (2) significantly impair the child's emotional development.
6. Mother has failed to establish that having overnight parenting time with Father would have either effect on [J.B.J.]. Therefore. her Petition to Modify Parenting Time is denied.
7. Father has not exercised his overnight parenting time with the child since June of 2009. Father claims that this is because of the conflict that occurs between he [sic] and Mother during drop-offs and pick-ups, often when Father's other children are present. Father, however, only testified to one specific exchange where this occurred. While Mother did not agree with Father as to the number of instances or the specifics of the conflict,
she did not disagree with Father's overall assertion that conflict has been present at exchanges.
8. Father is concerned about this conflict because most often during exchanges, his other young children are present.
9. The Court finds it is not in the child's best interest to witness conflict between his parents. The Court therefore grants Father's request to modify the parenting time order.
10. Parenting time shall be in accordance with the Supreme Court Parenting Time Guidelines, and the parties shall conduct all parenting time exchanges at a mutually agreed upon police or fire station to be located approximately an equal distance from their homes.
Petition to Modify Child Support
11. Both parties have requested the Court modify its child support order.
12. Pursuant to I.C. 31-14-11-8, a child support order may be modified upon a showing of a substantial change in circumstances that makes the terms of the order unreasonable, or that a person has been ordered to pay an amount in child support that differs by more than 20 percent from that amount that would be ordered applying the guidelines, and that the support order requested to be modified was issued at least 12 months prior.
13. Mother filed her petition to modify support prior to the Court issuing its Decree in September of 2008. Due to the passage of time and the length of the pendency of this litigation, the Court finds there is now a substantial change in circumstances which warrants the modification of its support order.
14. In dispute regarding child support are: Father's income, Mother's income, whether or not Mother is incurring extraordinary food/health expenses for the minor child, day care expenses, and the amount of credit Father should receive for overnight parenting time.
15. Father is employed by Jim Johnston, Inc. Fuller Engineering contracts with Jim Johnston, Inc., to seek out buyers for certain computer room equipment it manufactures. Father is the sole owner of Jim Johnston, Inc. Father is paid by and is the sole employee of the corporation. The corporation pays all business expenses of fulfilling its contract with Fuller Engineering. Part of the dispute between the parties lies in the difficulty in identifying legitimate business expenses that should be paid by the corporation versus personal expenses of Father, the reimbursement of which should be considered a part of his income.
16. Melinda Owens, CPA, testified on behalf of Mother pertaining to Father's 2008 income. Ms. Owens' testimony was based on Father's 2008 income tax returns, the 2008 and 2009 general ledgers of Jim Johnston, Inc., obtained from Father's accountant, and Fuller Engineering checks, as well as bank statements for Jim Johnston, Inc., from Charter One Bank and
the National Bank of Indianapolis from 2008. She did not talk to Father's CPA or review the tax returns of Jim Johnston, Inc.
17. The Court finds from Ms. Owens' testimony that Father's 2008 income was a minimum of $340,000.00. This testimony which [sic] is supported almost to the full amount by Father's 2008 tax return reporting $238,000.00 in adjusted gross income and the general ledger of Jim Johnston, Inc., showing that it paid rent to Father in the amount of $100,000.00 that was not reported on Father's 2008 tax return. Additional income that could be attributed to Father based upon arguably personal expenses paid on his behalf by Jim Johnston, Inc., is not included in this amount.
18. Mother has asked alternatively that the Court impute wages of $380,000.00 to Father. Under the present Indiana Child Support Guidelines, the Court must find a party to be underemployed without just cause before it can attribute potential-income to a party.
19. Mother has failed to show that Father is underemployed without just cause. Instead, the evidence indicates that Father is employed in the same position he has been in for a number of years. Father however, to avoid being laid off, was required to accept a new sales territory which has resulted in decreased earnings.
20. Father, too, argues that Mother is underemployed. Mother has a master's degree and was formerly employed with an annual salary of $70,000.00, clearly showing that she is capable of earning income. The Court has previously found in the Decree that Mother is capable of earning $685.00 per week which is just half of this amount.
21. Mother testified that she works from her home and is attempting to start a business. Her annual gross income is approximately $24,000. Although Mother has voluntarily left her employment to start her own business, the Court finds that she is not underemployed without just cause. The birth of her second child and the need for flexibility to be available for the new child and for [J.B.J.] constitute[] just cause.
22. Mother testified that she incurs "extraordinary" expenses for the child including vitamins and supplements. Mother further testified that she incurs expenses for food for the child she considers "extraordinary" due to the child being diagnosed with celiac disease.
23. The Court does not find the expenses to which Mother testified are sufficient cause to deviate from the recommended guideline child support.
24. Father pays child support for three prior born children in the amount of $330.00 per week pursuant to an order of the Marion Superior Court. Father also pays the sum of $24.00 per week for health insurance for the minor child at issue. This expense is reasonable under the guidelines.
25. The Court further finds Father's reasons for not exercising parenting time are not convincing and that he should receive no parenting time credit until he establishes that he will actually exercise his rights under the
conditions he has requested and now been granted. The Court reserves jurisdiction to make this adjustment retroactively after a year, upon Father's request filed no later than July 15, 2011. Mother is not allowed to interfere with or make parenting time for Father difficult to her benefit.
26. Mother argues Father should pay the daycare costs for the minor child. Mother currently pays the sum of $179.00 per week in daycare expenses, or $9,308.00 annually.
27. Mother's 2009 tax returns show she claims she earned $22,538.00, which includes $11,717.00 in unemployment compensation. Mother presented no evidence that she was seeking alternative employment in 2009, only working for herself. The Court has found that Mother is not underemployed without just cause despite this because of the need to provide care for her children and the flexibility that self-employment provides to do this. Implicit in this, however, is the assumption that Mother is providing this care. Mother has acted in a manner consistent with this assumption as to her subsequent-born son. Mother testified that since his birth, until one week before the second day of trial, she cared for this child at home while she was working.
28. In light of Mother's self-employment and her ability to care for her other child at home, the Court finds that daycare expenses for [J.B.J.] are neither necessary nor reasonable. The Court finds it particularly unreasonable for Mother to incur daycare expenses that total nearly 86 percent of Mother's earnings apart from her
unemployment compensation and to expect these expenses to be paid by Father.
29. The Court finds Father's testimony regarding 2009 income to be uncontradicted and corroborated by his 2009 tax returns, and therefore finds that he earned $280,000.00 in 2009.
30. The Court also finds that there has been a decline in Father's income in 2010 due to a number of factors. These include the downturn in the economy and his re-assignment to a new territory that requires more travel and therefore expense and which has historically produced less income than his prior territory. The Court finds Father's income for 2010 shall be
calculated at $80,000.00.
31. The Court expressed certain concerns as to the accuracy of Father's stated income when it entered its Decree in 2008. These same concerns still trouble the Court as to Father's 2009 and 2010 stated income.
32. However, in light of the passage of time and the significant change in Father's income and the downturn in the economy, the Court finds that child support should be modified retroactive to the date of Mother's Petition filed on October 29, 2008.
33. Pursuant to the attached child support worksheets, the Court orders Father to pay child support to Mother in the sum of $450.75 per week from October 29, 2008, until January 1, 2009 (see Exhibit A attached), the sum
of $398.65 per week from January 1, 2009, until January 1, 2010 (see Exhibit B attached), and the sum of $159.85 per week from January 1, 2010 (see Exhibit C attached), until such time as the minor child is emancipated or further order of the Court.
34. The Court's Decree found Father to have a child support arrearage in the amount of $5,590.00 for the period July 13, 2007, through January 4, 2008, an arrearage of $9,850.00 for the period January 4, 2008, through June 20, 2008, and an arrearage of $4,970.00 from June 27, 2008, through September 26, 2008 (total: $20,410.00). Between September 26, 2008, and October 29, 2008, Father's child support obligation was $1,421.08 (four payments of $355.27). Based upon the retroactive effect of this order. Father owes for nine weeks at $450.75, or $4,056.75 for the balance of 2008. His total obligation for 2009 was $20,731.36, and is $3,676.55 for 2010 through June 4th (23 weeks times $159.85). Father's total child support obligation during the above over-all period therefore is $50,205.74.
35. Father made direct payments to Mother for child support from December of 2007 until June of 2008. These payments totaled $7,740.00.
36. Starting in June of 2008, Father made payments through the Clerk's Office. The Clerk's record shows that Father has paid support to Mother from June of 2008 through June 4, 2010, in the amount of $35.584.93. Therefore, the Court finds Father has paid the total of $43,324.93 in support to Mother since December of 2007.
37. The Court finds Father has underpaid his support obligation to Mother in the sum of $6,970.81.
* * *
Mother's Motions for Rule to Show Cause filed
May 20. 2009 and August 20, 2009
40. Mother's Verified Motion for Rule to Show Cause filed May 20, 2009, seeks to have Father held in contempt of court for failure to pay the child support found to be in arrears by the November 10, 2008, Decree, and for failure to pay his share of unreimbursed medical expenses. Mother's Verified Motion for Rule to Show Cause filed August 20, 2009, alleges a failure by Father to pay weekly child support in accordance with the November 2008 Decree.
41. While the Court's order of November 10, 2008, addressed how much child support was owed ($20,410.00), it did not determine how much had been paid, and therefore, did not find an over-all arrearage amount.
42. As noted above, Father made direct payments to Mother for child support from December of 2007 until June of 2008. These payments totaled $7,740.00. For the period of June through September 2008, Father made payments through the Clerk's office in the amount of $6,039.00, for a
total of $13,779.00. This left an arrearage of $6,631.00 as of September, 26, 2008, the reference date for the November 2008 Decree.
43. Father was ordered "to initiate his child support obligation payments and arrearages within 30 days" of the November 2008 order.
44. Father failed to pay down the arrearage balance during the rest of 2008 when his over-all income has been found to be $340,000.00. Father failed to pay down the arrearage balance in 2009 when his income has been found to be $280,000.00. The arrearage balance is now $6,970.81 and would be much higher were it not for the tax intercept of $7,814.66 on May 15, 2010. Father now claims a good faith inability to pay because his income has fallen to $80,000.00 per year.
45. Father has chosen to spend money on non-essential items. He has chosen to spend money on attorney fees. He has chosen to spend money on tax liabilities. He has chosen not to pay his arrearage balance, and therefore, the Courts grants Mother's Verified Motion for Rule to Show Cause on this issue and finds Father in contempt.
46. Although the Court has modified Father's child support retroactively, Father was under a duty to pay his weekly child support in accordance with the Court's November 2008 Decree unless and until it was modified. Father never requested such a modification, failed to make his payments in a timely fashion, and would have shown a significantly greater arrearage on his obligation since November 2008 had it not been for the interception of a tax refund check for $7,814.66 in May 2010 that was applied against that obligation. The Court finds Father in contempt on this matter.
47. Father was ordered by the Court in the September 26, 2008, order to maintain health insurance coverage for the minor child. From Exhibit N, it is clear that Father attempted to comply at least as early as October 7, 2008, but was unable to comply because Mother did not cooperate in the application process.
48. Mother, however, is not asking for Father to be found in contempt for failing to obtain insurance, but rather, for failing to pay his share of the uninsured medical expenses. The Court finds that even with Mother's cooperation, [J.B.J.] would not have been covered before October 15, 2008, and, therefore, the first two expenses shown on Exhibit 1 would have been uninsured medical costs.
49. Exhibit N also establishes that [J.B.J.] was covered by insurance on or about January 15, 2009. The Court will not speculate as to whether or not the expenses claimed by Mother for January 7, 2009, would have been covered by insurance but believes it inequitable to order Father to pay those particular uninsured expenses that were only uninsured due to Mother's behavior in failing to cooperate with Father in obtaining insurance.
50. The balance of the expenses shown on Exhibit 1 was incurred after insurance was obtained, but Father claims that many of these were not
reasonable and necessary. While the Court notes that the evidence indicates Mother brought the child to several doctors in the area prior to seeking out a "specialist" from Chicago, the Court will not second-guess Mother's decision as the sole legal and custodial parent to obtain such medical treatment as she deems necessary for the parties' child. The evidence does not establish that the expenses were unreasonable at the time they were provided, regardless of what hindsight may suggest now.
51. In reviewing Exhibit 1 further, the Court finds that Father should not be responsible for the February 2009 insurance premium. Although it was Father's responsibility to obtain medical coverage, it was not Mother's right to obtain that coverage and charge Father when it was her lack of cooperation that prevented him from fulfilling his responsibility. Also, the May 28, 2009, expenses for books, although hopefully useful to Mother, have not been shown to be a necessary expense for the treatment of [J.B.J.]
52. The Court does find that Father has willfully failed to pay his share of reasonable and necessary uninsured medical expenses for [J.B.J.] The total of the expenses approved by the Court is $3,308.61. Of these, $634.29 is for expenses from October of 2008. Father owes no portion of these expenses because Mother is responsible for the first $911.00 of uninsured medical expenses under the "six percent rule", and the Court's November 2008 order. The remaining balance of uninsured medical expenses allowed on Exhibit I is $2,674.32. Under the Court's retroactive support order, Mother is responsible for the first $1,357.29 of these expenses. Father is responsible for 92 percent of the balance, or $1,211.75.
Mother's Motion to Compel
53. On January 29, 2008, Mother served discovery upon Father. This consisted of interrogatories and requests for production of documents.
54. On March 13, 2009, April 17, 2009, and May 7, 2009, Mother sent letters to Father pursuant to Indiana Trial Rules in an attempt to informally resolve Father's failure to respond to discovery.
55. Father failed to make any formal response to Mother's request for discovery.
56. The Court admonishes Father for this failure, but finds that discovery issues at this point are moot and denies Mother's Motion to Compel. In doing so, the Court is mindful of Mother's claim that she incurred additional costs in being forced to obtain discoverable information elsewhere, but finds that she has failed to prove this claim.
57. Mother had the opportunity to examine Father under oath at the two widely separated days of hearing on these matters and has failed to show how she was prejudiced from Father's failure to answer her proposed interrogatories, or what discoverable information she would have obtained from his answers.
58. Father has testified under oath and without contradiction that he does not personally keep any of the documentation sought by Mother's request for production. Further, he permitted Mother access through his accountant who does maintain those records, and Mother did obtain those documents. She has not specified what, if any documents she was denied.
59. Mother claims she has incurred copying costs, but because Father did not have the documents requested, these are reasonable costs of production when a third party is involved. Mother also claims the expense of hiring an expert witness stems from Father's failure to respond, but this expense came from analyzing data and testifying to her opinion from that data. It remains that Mother has not established that Father had this data to provide.
SUMMARY OF RULINGS AND ORDERS
1. Mother's Petition to Modify Parenting Time and Child Support is denied in part and granted in part. Parenting time is not modified and is confirmed to be in accordance with the Indiana Supreme Court Parenting Time Guidelines. Child support is modified retroactively as noted above. From June 11, 2010, forward until [J.B.J.] is emancipated or until further order of the Court. Father shall pay $159.85 per week. This amount includes no parenting time credit, but the Court reserves the right to modify this amount based upon a showing that Father has exercised his parenting time over the course of the next year. Father must file such motion no later than August 1, 2011.
2. Father's oral motion to modify parenting time to require pick-up and drop-off to be at a police or fire station is granted.
3. Father's arrearage as of June 4, 2010, is found to be $6,970.81. A judgment in this amount is ordered entered in favor of Mother and against Father in this amount. Father is ordered to pay a minimum of an additional $100.00 per week on this arrearage until he is current in his obligation.
4. Mother's Motion to Reduce Obligation to Judgment was granted on the stipulation of the parties by the Court's Order dated November 5, 2009, and that judgment has been satisfied.
5. Mother's Verified Motion for Rule to Show Cause filed May 20. 2009, was granted. Father was found in contempt of court for failure to timely pay his child support arrearage and for his failure to pay his portion of uninsured medical expenses for [J.B.J.]
6. Father is ordered to pay Mother $1,211.75 for his share of uninsured medical expenses for [J.B.J.], and this amount is ordered reduced to judgment in favor of Mother and against Father.
7. Mother's Verified Motion for Rule to Show Cause filed August 20, 2009, was granted. Father was found in contempt of court for his failure to timely and consistently pay his weekly child support obligation. No further
sanction is imposed, but Father is admonished to adhere strictly to the weekly payment of child support.
8. Father is ordered to pay Mother's attorney fees in the amount of $2,650.00 to Shawn Blumenthal within 60 days based upon the findings of contempt. Said amount will be reduced to judgment if not paid within this time. No additional award of attorney fees is made to either party.
Mother has not included a copy of the trial court's order in her appendix. See Ind. Appellate Rule 50(A)(2)(b). Accordingly, we cite to the pages of her brief, which does include a copy of the order.
DISCUSSION AND DECISION
Standard of Review
Initially, we note Father did not file an appellee's brief. When the appellee fails to file a brief, we need not undertake the burden of developing an argument for the appellee. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial court's judgment if the appellant presents a case of prima facie error. Id. "Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it." Id. (quotation omitted). Where an appellant does not meet this burden, we will affirm. Id.
The trial court entered findings and conclusions. Thus, we apply a two-tiered standard of review: we determine first whether the evidence supports the findings and, second, whether the findings support the judgment. In re Paternity of G.R.G., 829 N.E.2d 114, 117 (Ind. Ct. App. 2005). We disturb the judgment only where there is no evidence supporting the findings, or the findings fail to support the judgment. Id. We do not reweigh the evidence and we consider only the evidence favorable to the trial court's judgment. Id. A challenger must establish the trial court's findings are clearly erroneous. Id. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. Id. However, we do not defer to conclusions of law, and a judgment is clearly erroneous if it relies on an incorrect legal standard. Id.
Issue One: Child Care Expenses
Mother first contends that the trial court abused its discretion when it denied her request that Father pay for preschool for J.B.J. Mother's argument on this issue is somewhat difficult to discern. In essence, she maintains that the trial court should have found her credible when she testified that she cannot take care of J.B.J. and continue to run her home-based business simultaneously.
The crux of Mother's argument is a request that we reweigh the evidence and reassess her credibility, which we cannot do on appeal. See Irmscher Suppliers Inc. v. Schuler, 909 N.E.2d 1040, 1052 (Ind. Ct. App. 2009). Guideline 3E(1) provides that child care costs "incurred due to employment or job search" of a parent should be added to the basic child support obligation. Mother testified that she works at home and was starting a second home-based business. She testified that she cannot take care of J.B.J. full time, work, and pursue her new business, so she wanted J.B.J. to go to preschool. But Father testified that because Mother was caring for her other child at home full time, there was no need to send J.B.J. to preschool. In response, Mother testified that "having two children is absolutely twice the work" and that she would have difficulty keeping up with her work with both children at home all day. Transcript at 106.
The trial court found that "[i]n light of Mother's self-employment and her ability to care for her other child at home, the Court finds that daycare expenses for [J.B.J.] are neither necessary nor reasonable." Brief of Appellant at 37. That finding is supported by the evidence presented by Father and is not, therefore, clearly erroneous. Mother cites other reasons for wanting to keep J.B.J. in preschool, including his social development, but the Guidelines do not address those circumstances. Guideline 8 provides for "Extraordinary Educational Expenses," but those include elementary, secondary, and post-secondary education, not preschool. And, again, Guideline 3 expressly provides for child care only where a parent is working or actively seeking employment. Here, the trial court found that Mother is able to work and take care of J.B.J., and we will not reweigh the evidence.
Issue Two: Determination of Parties' Incomes
Mother next contends that the trial court abused its discretion when it determined the parties' incomes for calculating Father's child support obligation. Our supreme court has placed a "strong emphasis on trial court discretion in determining child support obligations" and has acknowledged "the principle that child support modifications will not be set aside unless they are clearly erroneous." Lea v. Lea, 691 N.E.2d 1214, 1217 (Ind. 1998).
Mother first maintains that the trial court "overstated" her annual income as $24,000. Brief of Appellant at 13. But Mother's 2009 tax return shows an income of $22,538, and Mother testified that she expected to earn $24,000 for 2010, "if [J.B.J.] is in school full time." Transcript at 146. But, again, the trial court rejected Mother's contention on this issue and believed Father's testimony that Mother could work and take care of both of her children. We will not reweigh the evidence. Moreover, our review of the record indicates that Mother neither signed the child support worksheet submitted by
Father, nor submitted her own worksheet. And Mother does not challenge the trial court's finding that she has a master's degree and "was formerly employed with an annual salary of $70,000[.]" Brief of Appellant at 35. Mother has not shown that the trial court's determination of her income is clearly erroneous.
The Guidelines provide for a child support worksheet to be completed and filed with the trial court, signed by the parties and supported by documentation. Child Supp. G. 3(B). If the parties cannot agree on the weekly gross income figures to be included on the worksheet, then each party may submit its own worksheet and documentation, from which the trial court can determine the parties' respective weekly gross incomes and compute the appropriate child support amount. Child Supp. G. 3(B), cmt. 1. Each party bears the burden of justifying the incomes used in his or her own worksheet. In re Paternity of G.R.G., 829 N.E.2d 114, 118-19 (Ind. Ct. App. 2005).
Next, with regard to Father's income, Mother contends that the trial court has grossly understated his income. Mother agrees with the trial court's determination that Father earned $340,000 in 2008 and $280,000 in 2009. But Mother alleges that "Father's stated [] income of $80,000 for 2010 does not accurately reflect Father's true and actual income." Id. at 15. Indeed, the trial court acknowledged that it had "concerns" regarding "the accuracy of Father's stated income[.]" Id. at 37-38.
According to Father, his sales territory changed in early 2010, which resulted in significantly less income than he had made in prior years. In addition to that factor, the trial court acknowledged the "downturn" in the economy as negatively impacting Father's income. Id. at 37. But at the hearing, Father submitted paystubs for each month from January through May 2010, and the monthly average of those checks was approximately $13,000. With that monthly average income, Father would earn approximately $156,000 for 2010, or almost double $80,000. We hold that the undisputed evidence does not support the trial court's determination that Father was expected to earn only $80,000 in 2010.
Father testified that the $29,000 check he received in January 2010 consisted of commissions earned while working in his former territory and that it was, therefore, not representative of his expected income for 2010. But even disregarding that check, Father has a paystub dated May 2010 for more than $19,000. If Father continued to earn commissions closer to the $19,000 figure throughout the remainder of 2010, he would have earned significantly more than $80,000.
Father's income is based solely on commissions, which are, by their nature, subject to fluctuations. For example, in March 2010, Father earned only $2,535, but in May 2010, he earned $19,833. While the Guidelines advocate a total income approach to calculating weekly gross income, they recognize determining income is fact-sensitive when irregular income, such as bonuses, overtime, and commissions, is involved. In re Paternity of G.R.G., 829 N.E.2d 114, 118 (Ind. Ct. App. 2005). One method of treating irregular income is to require the obligor to pay a fixed percentage of the irregular income "in child support on a periodic but predetermined basis (weekly, bi-weekly, monthly, quarterly) rather than by the process of determining the average of the irregular income by past history and including it in the obligor's gross income calculation." Child Supp. G. 3(A), cmt. 2(b).
This court addressed circumstances similar to those here in Bower v. Bower, 697 N.E.2d 110 (Ind. Ct. App. 1998). In Bower, the father was self-employed as a commodities broker, and his income had fluctuated during the six years prior to the child support modification hearing in the parties' dissolution proceeding. His income was generated by commissions based upon the number of commodity trades he made for his clients. Id. at 113. The evidence showed that Father earned approximately $65,000 in 1991; $42,000 in 1992; $80,000 in 1993; $158,000 in 1994; $205,000 in 1995; and $230,000 in 1996. Id. at 112.
In Bower, we noted that Commentary 2b of Guideline 3 then stated that "where that income is contingent upon the production of the worker, earnings of a business or some other variable, a judge must be innovative in finding ways to include the income but be receptive to deviations where articulate reasons justify them." Id. at 113. The trial court "determined that averaging Husband's income for the last five years was the most accurate way of determining Husband's true annual income" for the current year. Id. at 114. Thus, "instead of using Husband's 1996 income, which totaled $230,449, to calculate Husband's child support obligation for 1996, the trial court used the five-year average of Husband's income which was $143,494." Id. And we held that the trial court did not abuse its discretion in its calculation of the husband's income for child support purposes given his "unique employment situation[ and] the flexibility inherent in the Guidelines permitted the trial judge[.]" Id.
Likewise, here, we are faced with a unique set of circumstances in that Father is self-employed and earns only commissions. We note that the trial court expressed its doubts as to Father's accuracy in stating his income. Indeed, Father's paystubs for January through May 2010 are indisputable evidence of his income and cannot be reconciled with his self-serving testimony that he expected to earn $80,000 in 2010. Thus, we hold that the trial court erred, and we reverse the court's determination of Father's income for child support purposes.
On remand, Father shall submit to the trial court a copy of his tax return for 2010 and copies of any documents verifying his income to date in 2011, such as paystubs. Based on that new evidence, as well as the evidence submitted at the modification hearing, the trial court shall determine Father's income. Again, the trial court has flexibility in that endeavor. For purposes of calculating his child support obligation, the trial court may follow the suggestion in the commentary to Guideline 3(A) and treat Father's commissions as irregular income. Or the trial court may decide to take the average of Father's income over the last several years to determine his annual income. The trial court has discretion and may wish to provide a base amount of weekly support, with a percentage of Father's commissions that exceed the average added to that base weekly amount on a monthly basis. Even if Father's 2010 tax return shows that he earned $80,000, the trial court shall take into consideration the fact that his income is irregular and has historically been much higher, although the court retains the discretion to weigh prior years in accordance with any facts that might affect Father's anticipated future income.
Issue Three: Health Insurance
Mother next contends that the trial court erred when it gave Father a credit for providing health insurance for J.B.J. retroactive to a date prior to the actual starting date of the insurance. It is undisputed that the effective date for the health insurance that Father obtained for J.B.J. was May 1, 2009. Indeed, in its order, the trial court states that Father "should not be responsible for the February 2009 insurance premium" for insurance purchased by Mother for J.B.J. Brief of Appellant at 42. While the evidence shows that Mother did not cooperate with Father in his efforts to obtain health insurance prior to May 1, 2009, there is no evidence that Father expended any monies for health insurance for J.B.J. prior to May 1, 2009. Regardless, in his motion to correct error, Father requested a credit of $63 per week for health insurance coverage for J.B.J. retroactive to October 29, 2008, and the trial court granted that motion. We hold that Father is only entitled to a credit for health insurance payments in the amount of $63 per week retroactive to May 1, 2009. On remand, the trial court shall recalculate the amount of Father's arrearage accordingly.
Mother also contends that because of the disparity in the parties' incomes, the trial court should have left the health insurance premium payments "outside the worksheet." Brief of Appellant at 20. In other words, Mother maintains that Father should not be entitled to a credit for the health insurance premium payments, but that he should pay the premiums in addition to his child support obligation. But Mother does not support her contention with citation to relevant authority. Accordingly, Mother has not persuaded us that the trial court abused its discretion when it included the health insurance premium credit in the calculation of Father's child support obligation after May 1, 2009.
Issue Four: Extraordinary Medical Expenses
Mother contends that the trial court abused its discretion when it did not include as part of Father's child support obligation the $400 per month Mother spends on extraordinary medical expenses for J.B.J. The trial court found that those expenses are insufficient to require deviation from the recommended guideline for child support. Mother maintains, again, that given the disparity in the parties' incomes, the trial court should have ordered Father to pay these extraordinary expenses. But Mother cites to Indiana Code Section 31-16-6-2, which provides that a trial court may include, "where appropriate," special medical expenses in a child support order. Mother has not shown that the trial court abused its discretion on this issue.
We note that there is conflicting evidence regarding the nature of J.B.J.'s medical condition and, indeed, whether J.B.J. even has a medical condition requiring a special diet. To the extent Mother contends that the trial court should have believed certain medical records and affidavits over others, that is a request that we reweigh the evidence, which we will not do. There is evidence in the record supporting Father's contention that J.B.J. does not have a medical condition requiring a special diet or medical treatment above and beyond that typical of any child.
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Issue Five: Unreimbursed Medical Expenses
Mother contends that the trial court abused its discretion when it ordered that Father was not responsible for $794 in unreimbursed medical expenses. Mother had requested that Father reimburse her for medical expenses in the amount of $2005, but the trial court excluded $794 of those claimed expenses. The trial court explained that "even with Mother's cooperation, [J.B.J.] would not have been covered before October 15, 2008, and, therefore, the first two expenses shown on Exhibit 1 [totaling $634.29] would have been uninsured medical costs." Brief of Appellant at 41. Further, the trial court found:
Exhibit N also establishes that [J.B.J.] was covered by insurance on or about January 15, 2009. The Court will not speculate as to whether or not the expenses claimed by Mother for January 7, 2009, [in the amount of $160.60] would have been covered by insurance but believes it inequitable to order Father to pay those particular uninsured expenses that were only uninsured due to Mother's behavior in failing to cooperate with Father in obtaining insurance.
Id.
In sum, Mother requested that Father pay her $2005 in unreimbursed medical expenses for J.B.J. The trial court explained its reasons for ordering Father to pay only $1,211.75 of those expenses. Mother's contentions on this issue are, again, difficult to discern. The evidence supports the trial court's determination that Mother did not cooperate with Father when he first attempted to obtain health insurance for J.B.J. Mother has not shown that the trial court abused its discretion on this issue.
Issue Six: Attorney's Fees
Mother next contends that the trial court abused its discretion when it ordered Father to pay only a portion of her attorney's fees. Pursuant to Indiana Code Section 3116-11-1, a trial court has broad discretion to impose attorney's fees on either parent. Thompson v. Thompson, 868 N.E.2d 862, 870 (Ind. Ct. App. 2007). We will reverse an order for the payment of attorney's fees only when the award is clearly against the logic and effect of the facts and circumstances before the court. Id. The trial court may properly consider the respective resources of the parties, their financial earning abilities, and "any other factors that bear on the reasonableness of the award." Id. Moreover, the trial court may consider any misconduct on the part of a former spouse that necessitated additional legal expenses for the other party. Id.
Mother maintains that given the parties' income disparity, Father's "lavish" lifestyle, and Father's misconduct throughout the course of these proceedings, the trial court should have ordered Father to pay all of her attorney's fees. Brief of Appellant at 24. But, again, the trial court has "broad discretion" in awarding attorney's fees, and we will not find an abuse of discretion absent a showing that the award is clearly against the logic and effect of the facts and circumstances before the court. See Thompson, 868 N.E.2d at 870. Mother has not demonstrated that the trial court's order regarding attorney's fees is clearly erroneous. Neither has Mother demonstrated that the trial court abused its discretion when it denied her request that Father pay the fees she incurred in hiring an accountant to testify at the hearing. On remand, if the trial court determines that Father's income is substantially more than the court had previously found, the court may, in its discretion, decide to award Mother additional attorney's fees.
Issue Seven: Interest on Child Support Arrearage
Finally, Mother contends that the trial court abused its discretion when it did not include interest on Father's arrearage. Mother is correct that the trial court had, in its amended paternity decree dated November 10, 2008, ordered Father to pay 1.5% interest on his child support arrearage. But the trial court did not award interest on the current arrearage, and Mother has not shown an abuse of discretion. See Ind. Code § 31-16-12-2 (provides for interest on child support arrearage in trial court's discretion). Accordingly, Mother is not entitled to interest on the current arrearage.
CONCLUSION
The greater part of Mother's brief consists of requests that we reweigh the evidence, which, again, we will not do on appeal. The trial court has especially broad discretion to determine issues of child support and visitation, and we will not second-guess the court absent a showing that the determinations are clearly erroneous. Mother has persuaded us that the trial court erred when it determined Father's income. On remand, the trial court shall order Father to submit his 2010 tax return and paystubs or other evidence of his 2011 income to date. The trial court shall consider that new evidence, along with the evidence presented at the modification hearing, in determining Father's income. The trial court may wish to take the average of Father's income for the last several years, as the court did in Bower, or the court may follow the suggestions in the commentary to the Guidelines, or the court may fashion its own method, perhaps based in part on those ideas. The trial court shall also recalculate Father's arrearage in light of a credit for paying health insurance premiums retroactive to May 1, 2009. We affirm the trial court in all other respects.
Affirmed in part, reversed in part, and remanded with instructions. RILEY, J., and MAY, J., concur.