Angela K. Scanlon v. Stephen L. Scanlon (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 18, 2016
• Docket: 49A02-1507-DR-731
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 18 2016, 8:34 am 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.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Andrea L. Ciobanu Stephen R. Lewis Alex Beeman Indianapolis, Indiana Ciobanu Law, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Angela K. Scanlon, February 18, 2016 Appellant-Respondent, Court of Appeals Case No. 49A02-1507-DR-731 v. Appeal from the Marion Superior Court Stephen L. Scanlon, The Honorable Cynthia J. Ayers, Appellee-Petitioner. Judge; Mark F. Renner, Commissioner Trial Court Cause No. 49D04-0302-DR-240

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-DR-731 | February 18, 2016 Page 1 of 5 [1] Angela K. Scanlon (Angela) appeals the trial court’s denial of her motion to

correct errors. As we find no abuse of discretion in the trial court’s denial, we

affirm.

Facts and Procedural History [2] Angela and Stephen L. Scanlon (Stephen) were divorced in 2003. Angela

received physical custody of both minor children. Thereafter, Angela and the

older child began having disagreements, so Angela and Stephen agreed that

child should reside with Stephen, while Angela would retain physical custody

of the younger child. However, they were unable to come to an agreement

regarding the financial implications of that change of custody.

[3] On February 10, 2015, the court held a hearing regarding custody and child

support, at which Angela represented herself. Stephen offered a child support

worksheet for each child that represented his self-employed income was

$1,530.00 per week. Angela challenged the worksheets on the bases that she

believed the health insurance rate was incorrect and that the income

information for Stephen was based on his 2013 taxes. The court clarified for

her that she would have a chance to testify as to those matters; however, Angela

did not offer any such testimony. Stephen’s income was supported by his

financial declaration and his testimony in which Stephen stated his 2014

income was “roughly the same” as his 2013 income. (Tr. at 23.) Angela did

not introduce an alternate child support worksheet and she testified she could

not provide the correct health insurance rate because she “misplaced the

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-DR-731 | February 18, 2016 Page 2 of 5 document with the insurance.” (Id. at 19.) Angela did not produce any other

documentary evidence at the hearing.

[4] On February 17, 2015, the court entered Findings and Order on Petition to

Modify Child Custody and Child Support. The court found Stephen’s weekly

income to be $1,530 and Angela’s to be $549.00. The court ordered Stephen’s

child support obligation for the younger child to be $171.00 per week and

Angela’s child support obligation for the older child to be $53.00 per week. The

result is a net child support order for Stephen to pay $118.00 per week.

However, because he had been paying $280.00 per week for both children

during the pendency of the modification proceedings, he had accrued a credit

and the court ordered that to be repaid to him over the next 135 weeks by his

payment of child support in the amount of $90.00 per week.

[5] On March 19, 2015, Angela, represented by counsel, filed a verified motion to

correct errors. The court conducted a hearing. Finding no newly discovered

evidence that would justify recalculating support, the court denied Angela’s

motion as it pertains to the child support.

Discussion and Decision [6] Angela asserts the trial court abused its discretion in denying her motion to

correct errors because it used an erroneous value for Stephen’s weekly gross

income. “A trial court has wide discretion to correct errors, and we will reverse

only for an abuse of that discretion.” Kashman v. Haas, 766 N.E.2d 417, 419

(Ind. Ct. App. 2002). “An abuse of discretion occurs when the trial court’s

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-DR-731 | February 18, 2016 Page 3 of 5 action is against the logic and effect of the facts and circumstances before it and

the inferences that may be drawn therefrom.” Id.

[7] “The determination of the amount of child support is committed to the trial

court’s discretion and will not be overturned unless it is clearly erroneous.”

Skinner v. Skinner, 644 N.E.2d 141, 146 (Ind. Ct. App. 1994). “A child support

order is clearly erroneous if it is clearly against the logic and effect of the facts

and circumstances that were before the trial court.” Id.

[8] Angela argues the trial court erred by not requiring Stephen’s income be based

on a calculation of “gross receipts minus ordinary and necessary expenses.”

(Appellant’s Br. at 12 citing Child Supp. G. 3(A)(2).) However, Angela did not

raise this argument at the final hearing, and thus she may not now raise it on

appeal. See Lazzell v. Indiana Family & Soc. Servs. Admin., 775 N.E.2d 1113, 1119

(Ind. Ct. App. 20002) (party may not raise argument on appeal that was not

raised at trial). At the hearing to determine child support, Angela did not

present any evidence contrary to Stephen’s testimony and financial declaration.

Those pieces of evidence were consistent with one another and with the income

assigned to Stephen by the trial court. As the court’s finding was supported by

the evidence, Angela has not demonstrated the court made an error that should

have been corrected. See, e.g., Ratliff v. Ratliff, 804 N.E.2d 237, 246 (Ind. Ct.

App. 2004) (affirming court’s finding of income where income supported by

evidence in the record).

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-DR-731 | February 18, 2016 Page 4 of 5 [9] At the hearing on the motion to correct error, Angela attempted to introduce

into evidence alternate child support worksheets and copies of Stephen’s 2013

taxes. A motion to correct error can be used to address “[n]ewly discovered

material evidence . . . capable of production within thirty (30) days of final

judgment which, with reasonable diligence, could not have been discovered and

produced at trial.” Ind. Trial Rule 59(A)(1). However, these exhibits all could

have been produced at the February 10, 2015, hearing. Therefore, we cannot

say the court abused its discretion by refusing to reconsider its order on the

basis of new evidence. See Hawkins v. Cannon, 826 N.E.2d 658, 664 (Ind. Ct.

App. 2005) (no error in denial of motion to correct error when evidence could

have been discovered and produced at trial with due diligence), trans. denied.

Conclusion [10] As Angela has not demonstrated the court abused its discretion in denying her

motion to correct error, we affirm.

[11] Affirmed.

Najam, J., and Riley, J., concur.

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