Opinion
23A-DR-2797
06-13-2024
Whitney L. Hill, Appellant-Respondent v. Troy W. Hill, Appellee-Petitioner
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Harrison Circuit Court The Honorable Steven L. Owen, Special Judge Trial Court Cause No. 31C01-1610-DR-185
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Troy Hill ("Father") filed a motion to modify his child support obligation for his two minor children because he was unable to work after he suffered a work-related injury. In response, Whitney Hill ("Mother") argued that the trial court should impute income to Father. The trial court granted Father's motion to modify his weekly child support obligation from $167 to $6 per week. Mother appeals, arguing that the trial court erred when it modified Father's weekly child support obligation.
[¶2] We affirm.
Facts and Procedural History
[¶3] Mother and Father's marriage was dissolved in 2017, and the trial court awarded custody of the parties' two minor children to Mother. Father remarried after the parties' marriage was dissolved. In August 2020, the trial court modified Father's child support obligation to $167 per week. In its order, the court observed that Father only worked part-time but found that Father had the ability to work full-time, and therefore, the court imputed income to Father. Appellant's App. p. 23.
[¶4] On October 21, 2022, Father filed a petition to modify his child support obligation alleging a substantial and continuing change in his financial circumstances. The trial court held a hearing on the petition on September 29, 2023.
[¶5] At the hearing, Father testified he was employed as a carpenter when his child support obligation was modified in 2020. Tr. p. 11. He suffered a work-related shoulder injury in April 2022. Father received worker's compensation benefits until September or October. Id. at 13-14. Father had shoulder surgery two weeks before the fact-finding hearing and was still under a doctor's care. Father stated he was still unable to work. Id. at 14. Father testified that he has not received any income since October 2022. Id. Father stated that he could "possibly" find other employment, but he did not do so because he will be able to return to carpentry work when his injury is healed. Id. at 43. Father explained that his wife owns their home and generally pays their living expenses. Id. at 20.
[¶6] After considering the evidence, the trial court granted Father's petition to modify. In its calculation of Father's modified child support obligation, the trial court imputed minimum wage income to Father. After giving Father credit for parenting time overnights, Father's child support obligation was reduced to $6 per week. The trial court ordered the modified support obligation retroactive to October 21, 2022.
[¶7] Thereafter, Mother filed a motion to correct error and argued that Father failed to show a substantial change in circumstances from the date the court had previously modified his child support obligation in August 2020. The court denied Mother's motion.
[¶8] Mother now appeals.
Discussion and Decision
[¶9] As an initial matter, we observe that Father did not file an appellee's brief. When the appellee fails to file a brief on appeal, we may reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind.Ct.App. 2004). In this context, prima facie error is defined as "at first sight, on first appearance, or on the face of it." Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind.Ct.App. 2006). This rule was established for our protection so that we can be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. McGill, 801 N.E.2d at 1251.
[¶10] Mother contends that the trial court abused its discretion when it modified Father's child support obligation. "Upon the review of a modification order, 'only evidence and reasonable inferences favorable to the judgment are considered.'" Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind. 2015) (quoting Kinsey v. Kinsey, 640 N.E.2d 42, 44 (Ind. 1994)). The order will only be set aside if clearly erroneous. Id. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake was made. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind.Ct.App. 2005).
[¶11] Indiana Code section 31-16-8-1 provides in relevant part that child support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. Mother claims that the trial court abused its discretion when it modified Father's child support obligation because his inability to work was temporary, and therefore, it was not a continuing changed circumstance.
[¶12] Father's worker's compensation benefits ended in October 2022, the same month that Father filed his petition to modify his child support obligation. Approximately one year later, the trial court held a hearing on Father's petition, and Father was still unable to return to work. Father had an additional shoulder surgery two weeks before the hearing and was still under a doctor's care. Father had an appointment scheduled for October 10, 2023, and he speculated that he would need to participate in physical therapy for at least a month before he could return to work. Tr. p. 14. Father's doctor advised him not to work to avoid the risk of possibly reinjuring his shoulder.
[¶13] In sum, Father has not been able to work and has not received worker's compensation benefits or any other income for over a year. This constitutes a substantial and continuing change in circumstances sufficient to support the court's order modifying Father's child support obligation.
[¶14] Mother also argues that the trial court erred when it calculated Father's modified child support obligation because it should have imputed additional income to him.
Child support calculations are made utilizing the income shares model set forth in the Indiana Child Support Guidelines. The Guidelines apportion the cost of supporting children between the parents according to their means, on the premise that children should receive the same portion of parental income after a dissolution that they would have received if the family had
remained intact. The trial court is vested with broad discretion in making child support determinations. A calculation of child support under the Guidelines is presumed to be valid.Sandlin v. Sandlin, 972 N.E.2d 371, 374-75 (Ind.Ct.App. 2012) (citations omitted).
[¶15] A parent's weekly gross income is defined as actual income when "the parent is employed to full capacity, potential income if unemployed or underemployed, and the value of 'in kind' benefits received by the parent." Ind. Child Supp. Guid. 3(A)(1). Importantly, the trial court may impute the income of a parent's spouse in its child support calculation, but the court is not required to do so. Laux v. Ferry, 34 N.E.3d 690, 693 (Ind.Ct.App. 2015).
Whether or not the value of in-kind benefits should be included in a parent's weekly gross income is fact-sensitive and requires careful consideration of the evidence in each case. It may be inappropriate to include as gross income occasional gifts received. However, regular and continuing payments made by a family member, subsequent spouse, roommate or live in friend that reduce the parent's costs for housing, utilities, or groceries, may be included as gross income. If there were specific living expenses being paid by a parent which are now being regularly and continually paid by that parent's current spouse or a third party, the value of those assumed expenses may be considered to be in-kind benefits and included as part of the parent's weekly gross income. The marriage of a parent to a spouse with sufficient affluence to obviate the necessity for the parent to work may give rise to a situation where either potential income or the value of in-kind benefits or both should be considered in arriving at gross income.Child Supp. G. 3(A), cmt. (2)(d).
[¶16] Here, the trial court imputed minimum wage income to Father. Mother argues that the trial court should have imputed additional income to Father because his spouse, who earns approximately $48,000 per year, pays for their home and their living expenses. Mother claims that "the fact that [] Father was living rent-free and that his new spouse was paying all of his bills freed up [] Father's resources so that he could provide support to his children." Appellant's Br. at 16 (citing Glass v Oeder, 716 N.E.2d 413, 417 (Ind. 1999)).
[¶17] But Mother did not establish what resources Father has available to him to pay child support. Father is not earning income while he recovers from his shoulder injury. For these reasons, Mother has not established that the trial court erred when it imputed only minimum wage income to Father.
[¶18] We therefore affirm the trial court's order modifying Father's child support obligation.
Riley, J., and Felix, J., concur.