Bower v. Bower

697 N.E.2d 110, 1998 Ind. App. LEXIS 1262, 1998 WL 420651
CourtIndiana Court of Appeals
DecidedJuly 28, 1998
Docket79A02-9802-CV-171
StatusPublished
Cited by18 cases

This text of 697 N.E.2d 110 (Bower v. Bower) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bower v. Bower, 697 N.E.2d 110, 1998 Ind. App. LEXIS 1262, 1998 WL 420651 (Ind. Ct. App. 1998).

Opinion

OPINION

HOFFMAN, Judge.

Appellant-petitioner Marliene A. Bower (“Wife”) appeals the trial court’s order which 1) increased appellee-respondent James C. Bower’s (“Husband”) child support obligation based upon an average of Husband’s income over five years, and 2) allowed Husband to claim one child as a dependent for federal and state tax purposes. The facts relevant to appeal are set forth below.

Husband and Wife were divorced on March 13, 1992. Pursuant to the dissolution decree, Wife was awarded custody of the parties’ two minor children. Husband was ordered to pay $230 per week for child support.

On August 26,1996, Wife filed a petition to modify the dissolution decree alleging a “substantial and continuing change of circumstances of such a magnitude as to make the existing support order unreasonable in that the minor children’s expenses have increased substantially and the Husband’s income has increased in a substantial sum....” 1 On April 3, 1997, Husband filed a petition to modify the dissolution decree requesting that he be permitted to claim both children as dependents for federal and state income tax reporting purposes.

A hearing on the matter was held on April 17,1997. On August 11,1997, the trial court entered its order granting Wife’s petition to increase Husband’s child support obligation, and Husband’s petition, in part, by allowing *112 him to claim one child as a dependent. In its order, the trial court specifically found that:

3. Since the entry of the original Decree of Dissolution in March of 1992 the husband has purchased three homes which he continues to own for investment purposes. The most recent home was purchased by the husband in May of 1996 for Six Hundred Forty Thousand dollars ($640,000.00). He pays monthly mortgage payments of Five Thousand Nine Hundred Dollars ($5,900.00). He breaks even on his other two houses. Although the husband anticipates he is gaining appreciation on his house investments and is receiving certain tax advantages, his cash flow is virtually zero.
4. The husband has purchased two horses at a cost of Fifteen Thousand ($15,-000.00) to Twenty Thousand Dollars ($20,000.00) and pays Five Hundred Dollars ($500.00) per month to board them in Bloomington, Indiana. He also takes the horses to Florida for boarding in the winter. The husband rides the horses two times per week and deducts the costs of maintaining them of approximately Eighteen Thousand Dollars ($18,-000.00) per year as promotional expenses. On the other hand, the husband owned and operated the Lafayette Hustlers during the marriage and deducted substantial moneys as a[sic] promotion expenses. This type of deduction was upheld by the Internal Revenue Service based on the promotional advantages gained in the husband’s commodity business.
5. The evidence reflects the husband travels a lot and takes a substantial deduction for travel on his tax returns. Also, on his 1995 tax return, Fifty-one Thousand Dollars was deducted for legal and accounting expenses.
7.The Court finds that the husband is employed by Bower Trading, Inc., a company engaged in commodities trading. The husband’s gross income after business expenses but before taxes, adding back in the depreciation reflected on Schedule E of each year’s tax return is as follows: 1991 — $65,929.00; 1992 — $42, 392.00; 1993 — $80,803.00; 1994 — $158,-120.00; 1995 — $205,706.00; 1996 — $230,-499.00. Averaging the husband’s income for the last five (5) years since the entry of the Dissolution Decree gives an average gross annual income of $143,494.00, which the Court believes is accurate to use based on the volatility of the commodities market and further based on the accepted business practice of averaging income for five (5) years to determine a true annual income for husband’s business according to the testimony of Dan Heman, CPA.
8. ... This Court does not find that [husband] has appreciably changed his lifestyle since the granting of the dissolution of marriage nor is he taking steps to “hide” income. He is aggressive in terms of taking tax deductions but the Court does not find a ground for substantial deviation from the support guidelines based on the facts of this case. There are substantial fluctuations in his income and on average it is fair and equitable to only add back into income his Schedule E depreciation in order to ascertain his gross weekly income for guideline purposes.
9. The wife reported Thirty-one Thousand Seven Hundred Forty Two Dollars ($31,742.00) in total gross income on her 1996 federal tax return. Depreciation deducted by the wife on Schedule E of that return totals Twenty-nine Thousand Two Hundred Fifty Dollars ($29,250.00). Adding that depreciation to wife’s total income gives her a total annual income of Sixty Thousand Nine Hundred Ninety-two Dollars ($60,992.00)-
10. The wife has a college degree and is licensed as a school teacher. She has voluntarily chosen to earn her living from investment and rental property and not to teach school which would substantially increase her income. It is not for this [C]ourt to impute additional income to her under the facts of this case. The role of the Court is not to attempt to engage in social engineering and maximize each party’s income for purposes of *113 the Child Support Guidelines. She has made a lifestyle choice allowing her to spend more time with the children; the children of the marriage are in no way-suffering economically....
11. Finding that the husband incurs health insurance costs to cover the children of $69.76 per week or $300.00 per month. Applying these figures to the Indiana Child Support Guidelines indicates that husband should pay $307.32 per week in child support to the Clerk of this Court....
14. Finding that based on the earning of the parties, the husband should be permitted to claim the oldest child of the marriage as a deduction for state and federal income taxes as long as he is current in the payment of his child support. ...
15. Finding that based on disparity of income of the parties the husband shall pay directly to counsel for the wife as partial payment of attorney fees the sum of One Thousand Dollars ($1,000.00) within thirty days of this order representing partial payment of attorney fees reasonably incurred.

Wife now appeals the trial court’s order.

On appeal, Wife raises the following issues:

(1) whether the trial court erred in using an average of Husband’s income over five years rather than the most current year of income in determining Husband’s support obligation;
(2) whether the trial court erred in failing to impute to Husband’s income certain deductions taking by Husband; and
(3) whether the trial court erred in not ordering Husband to pay all of Wife’s attorney’s fees.

Wife first argues that the trial court erred in using the average of Husband’s income for the years 1992 through 1996 to determine his current support obligation.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Robert A. Masters v. Leah Masters
43 N.E.3d 570 (Indiana Supreme Court, 2015)
In Re: The Marriage of L.R. v. J.R.
Indiana Court of Appeals, 2012
Trabucco v. Trabucco
944 N.E.2d 544 (Indiana Court of Appeals, 2011)
Schacht v. Schacht
892 N.E.2d 1271 (Indiana Court of Appeals, 2008)
Gillette v. Gillette
835 N.E.2d 556 (Indiana Court of Appeals, 2005)
Abouhalkah v. Sharps
795 N.E.2d 488 (Indiana Court of Appeals, 2003)
Mason v. Mason
775 N.E.2d 706 (Indiana Court of Appeals, 2002)
Sims v. Sims
770 N.E.2d 860 (Indiana Court of Appeals, 2002)
Marriage of Scoleri v. Scoleri
766 N.E.2d 1211 (Indiana Court of Appeals, 2002)
Lloyd v. Lloyd
755 N.E.2d 1165 (Indiana Court of Appeals, 2001)
Gardner v. Yrttima
743 N.E.2d 353 (Indiana Court of Appeals, 2001)
Hay v. Hay
730 N.E.2d 787 (Indiana Court of Appeals, 2000)
Schaeffer v. Schaeffer
717 N.E.2d 915 (Indiana Court of Appeals, 1999)
Claypool v. Claypool
712 N.E.2d 1104 (Indiana Court of Appeals, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
697 N.E.2d 110, 1998 Ind. App. LEXIS 1262, 1998 WL 420651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bower-v-bower-indctapp-1998.