Opinion
24A-DC-1543
12-26-2024
Ryan Morath, Appellant-Petitioner v. Abby Abbinante, Appellee-Respondent
ATTORNEY FOR APPELLANT Kevin J. Moser Florence, Kentucky
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Dearborn Circuit Court The Honorable F. Aaron Negangard, Judge Trial Court Cause No. 15C01-1708-DC-71
ATTORNEY FOR APPELLANT
Kevin J. Moser
Florence, Kentucky
Judges Pyle and Felix concur.
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] Ryan Morath (Father) appeals the modification of his child support obligation from $0 to $161 per week. He argues that the trial court erred in finding that a substantial change in circumstances justified the modification and that the court should have left intact the waiver of child support in his divorce decree. But parties cannot waive their children's right to support, and Father's income had nearly doubled since the divorce decree. Finding no error, we affirm.
Facts
[¶2] Father and his ex-wife, Abby Abbinante (Mother), divorced in 2017. Both proceeding pro se, they agreed to a decree of dissolution that provided for joint custody, equal parenting time, and "no support" for the couple's two sons. App. Vol. II, p. 20. The dissolution court approved the agreement.
[¶3] Six years later, the State petitioned to modify child support, alleging that a substantial and continuing change in circumstances had occurred, and that more than a year had elapsed since the last support order (the divorce decree). By this time, Father's income had nearly doubled, increasing from roughly $1,142.00 to $2,115.74 per week. Mother's income had also increased, but more modestly, growing from approximately $403.00 to $624.80 per week.
It appears from the record that the State became involved in the matter due to a contemporaneous child abuse investigation, which was eventually dismissed. After the State filed a petition alleging that Father and Mother's two sons were Children in Need of Services (CHINS), it took emergency custody of the children and placed them with Mother. The State then petitioned to modify child support. A few months later, the CHINS case was dismissed and the parties returned to their original custody arrangement. However, the State remained involved in the child support modification matter as "an Intervenor." Id. at 12.
[¶4] At a hearing on the petition to modify, Father argued that modification was not adequately justified under the Indiana Code. He downplayed his increased income and urged the trial court to leave unchanged the divorce decree's provision of "no support." Id. at 20. But the trial court rejected Father's reliance on the decree, explaining that the right to child support belongs to children and cannot be waived by parents. The court then found Father's significant change in income to be "a substantial and continuing change in circumstances" that justified the modification. Id. at 12.
We note that different judges presided over the dissolution and the child support modification.
[¶5] The trial court ordered Father to pay $161 per week plus control expenses (dayto-day child-related costs). This calculation came from Father's own proposed support worksheet, where he offered to cover these expenses, claiming he was already doing so. Father appeals the modification order.
Discussion and Decision
[¶6] We review child support modification decisions for clear error. Bogner v. Bogner, 29 N.E.3d 733, 738 n.2 (Ind. 2015). Under this standard, a judgment is affirmed unless it is "clearly against the logic and effect of the facts and circumstances before the trial court." Weiss v. Frick, 693 N.E.2d 588, 590 (Ind.Ct.App. 1998). We note, however, that Mother has not filed an appellee's brief. Thus, Father must establish only prima facie error, or in other words, error that is apparent on its face. See Copple v. Swindle, 112 N.E.3d 205, 209 n.2 (Ind.Ct.App. 2018).
[¶7] On appeal, Father does not dispute the calculation of his child support obligation. Instead, he contends no calculation was necessary because modification was improper. Indiana Code § 31-16-8-1 establishes two grounds for modification, providing that:
(b) . . . modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(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.
[¶8] This modification standard is applied even if parties previously made a court- approved agreement regarding child support. See Rolley v. Rolley, 13 N.E.3d 521, 530 (Ind.Ct.App. 2014), adopted in part and summarily aff'd in part by 22 N.E.3d 558, 559 (Ind. 2014). We therefore find no error in the trial court's refusal to reaffirm the waiver of child support in Father and Mother's divorce decree. See Schwartz v. Heeter, 994 N.E.2d 1102, 1107 (Ind. 2013) (noting that "child support payments are for the benefit of children" and parents cannot "bargain them away"); Marriage of Kraft, 868 N.E.2d 1181, 1187 (Ind.Ct.App. 2007) ("[T]he same principles and standards [regarding the freedom to contract] cannot apply to child custody and support provisions of proffered settlement agreements." (brackets in original) (quoting Voight v. Voight, 670 N.E.2d 1271, 1278 n.10 (Ind. 1996)).
Father criticizes the holding of Rolley, claiming it makes child support provisions of divorce agreements like his "illusory and meaningless." Appellant's Br., p. 17. But this policy decision is not for our court to make. "We are bound by our supreme court's decisions, and its precedent is binding on us until it is changed by our supreme court or legislative enactment." Fox v. Franciscan Alliance, Inc., 204 N.E.3d 320, 327 (Ind.Ct.App. 2023). Father further argues that Rolley "should not be held to apply to cases where the parties agree that no support is due," but cites no authority to support this proposition. Appellant's Br., p. 17. Regardless, the language of Rolley does not distinguish between types of support agreements.
[¶9] As for the basis of the trial court's modification, Father first argues that there were no substantial and continuing changes in circumstances. Specifically, he claims his co-parenting duties remained the same and that Father's change in income, when compared to Mother's, is "incredibly small and insubstantial." Appellant's Br., p. 10. But the record shows that Father's income had nearly doubled, which the trial court found to be "substantial," especially considering Father had not paid any child support over the past seven years. Tr. Vol. II, p. 46. At its core, Father's argument is merely a request to reweigh the evidence, which we will not do. See Bogner, 29 N.E.3d at 738 (noting that courts reviewing support modifications consider "only evidence and reasonable inferences favorable to the judgment"). Accordingly, Father has failed to show that the trial court erred in finding that subsection (b)(1) justified the modification.
Though the caselaw suggests that an additional showing is required when change in income is the only alleged change in circumstances, Father does not challenge the trial court's ruling on this basis. See MacLafferty v. MacLafferty, 829 N.E.2d 938, 942 (Ind. 2005) (holding that when change in income serves as the sole changed circumstance, it must either create a difference in the support obligation of at least twenty percent or converge with other factors to create changed circumstances). But because he made no such argument, Father has waived the issue. See Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind.Ct.App. 2003).
[¶10] Father also argues that the grounds for modification in subsection (b)(2) were not shown. However, proof of this subsection is unnecessary since subsection (b)(1) was used to justify the modification. The two subsections are independent alternatives and only one must be shown. See Rolley, 13 N.E.3d at 528 (finding that the statute provides independent grounds for modification and "does not create a distinct standard for modification of child support orders that are the result of child support agreements"). Accordingly, we need not consider subsection (b)(2).
[¶11] Because Father has failed to show that the trial court committed prima facie error, we affirm the modification of child support.
Pyle, J., and Felix, J., concur.