Carter Ex Rel. Carter v. Morrow

563 N.E.2d 183, 1990 Ind. App. LEXIS 1606, 1990 WL 201428
CourtIndiana Court of Appeals
DecidedDecember 13, 1990
Docket72A01-9006-CV-242
StatusPublished
Cited by15 cases

This text of 563 N.E.2d 183 (Carter Ex Rel. Carter v. Morrow) 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
Carter Ex Rel. Carter v. Morrow, 563 N.E.2d 183, 1990 Ind. App. LEXIS 1606, 1990 WL 201428 (Ind. Ct. App. 1990).

Opinion

BAKER, Judge.

Petitioner-appellant Jan Carter gave birth to a son, C.R., on June 21, 1983. She filed an action against respondent-appellee Steven Morrow on August 16, 1989 to establish paternity and set child support. The parties stipulated paternity and the trial court entered a child support order, which it modified in part upon Carter’s motion to correct error. Carter now ap *185 peals Judge James Kleopfer’s partial denial of her motion, to correct error, raising the following restated issues for our review:

I. Whether the trial court properly followed the Indiana Child Support Guidelines (the Guidelines).

II. Whether the trial court erred in not granting Carter’s request for back child support.

FACTS

Carter and Morrow lived together for approximately two years in the early 1980s. Morrow told Carter to move out soon after Carter became pregnant with C.R., had no further relationship with Carter, and paid no support for C.R.

On August 16, 1989, Carter filed her action requesting future and back child support, medical expenses, employment related child care expenses, and private elementary school tuition expenses. The parties presented evidence of their incomes and obligations, including child support obligation worksheets, and the trial court entered its judgment on March 5, 1990. The trial court applied the formulas in the Guidelines to reach a support figure of $94.00 per week commencing retroactively on February 16, 1990, and also ordered an arrearage of $25.00 per week for the time between the filing of the action and February 16, 1990. Judge Kleopfer also awarded Carter birthing costs, one half of the costs for the blood tests which established paternity, attorney fees, and required Morrow to maintain medical insurance for C.R. and to pay 65 per cent of all C.R.’s uninsured medical expenses. The court did not allow two years of back support as requested by Carter, or recovery of the child care and educational expenses. ' Finally, the trial court refused to consider Morrow’s overtime income as part of his weekly gross income because of the uncertainty of future overtime income.

On Carter’s motion to correct error, the trial court modified its arrearage award by applying the Guidelines to increase the ar-rearage from $25.00 per week to $94.00 per week, but otherwise did not modify its original order.

DISCUSSION AND DECISION

I THE INDIANA CHILD SUPPORT GUIDELINES

The Indiana Supreme Court adopted the Indiana Child Support Rules and Guidelines for “use in all Indiana courts in all proceedings where child support is established or modified on and after October 1, 1989.” Commentary, Ind. Child Support Guideline 1. A child support order for the amount yielded by application of the Guidelines in any specific case is supported by a rebut-table presumption of correctness. Ind. Child Support Rule 2. If application of the Guidelines would result in an unjust award, the trial court is required to “enter a written finding articulating the factual circumstances supporting that conclusion.” Ind. Child Support Rule 3. Because child support in this case was established by the trial court’s March 5, 1990 order, the Guidelines were in effect, and we turn now to Carter’s arguments to determine whether the trial court properly applied the Guidelines in accordance with the Rules.

A. Overtime Wages

Carter first argues the trial court erred by not including Morrow’s overtime income as part of his weekly gross income under Ind. Child Support Guideline 3(A).

Weekly gross income of each parent includes income from any source, except as excluded below, and includes, but is not limited to, income from salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workmen’s compensation benefits, gifts, prizes, and alimony or maintenance received from other marriages.

Child Supp. G. 3(A)(1). While the word “overtime” is not specifically listed, the broad and inclusive nature of the sources of weekly gross income, coupled with the common sense notion that “wages” means base pay and overtime pay, leads us to the conclusion that overtime is indeed an element of weekly gross income. Judge Kle- *186 opfer reached the same conclusion, but determined not to include Morrow’s overtime because of the uncertainty of future overtime income. In making this determination, he complied exactly with the requirement of Child Supp. R. 3 that trial courts articulate their reasons for deviating from the Guidelines. This is all the Guidelines require. 1

Because Judge Kleopfer properly articulated his reasons for deviating from the Guidelines, our standard of review remains the same as it has always been; we will reverse only for an abuse of discretion. In re Paternity of Bratcher (1990), Ind.App., 551 N.E.2d 1160. The record reveals Morrow works for the automotive industry and suffers the periodic downturns that industry experiences. In this situation, we see no abuse of discretion in excluding Morrow’s overtime income from the calculation of weekly gross income.

B. Extraordinary Educational Expenses

Carter next argues the Guidelines required the trial court either to include expenses for private elementary education in the support order or to articulate the reasons for not doing so. We disagree. IND. CODE 31 — 1—11.5—12(b)(1) provides that child support awards may include extraordinary educational expenses where appropriate. The determination whether to allow such expenses in a particular case is a matter for the trial court’s discretion. Olds v. Olds (1988), Ind.App., 531 N.E.2d 1219. The Guidelines reaffirm that educational expenses are discretionary: “[a]ny extraordinary education expense incurred on behalf of the children may be added to the basic child support obligation.” Child Supp. G. 3(E)(3) (emphasis added). Unlike the inclusion of overtime in support awards, the inclusion of educational expenses is discretionary, and no reasonable purpose would be furthered by reading Child Supp. R. 3 to require trial courts to explain why they did not do that which they are not required to do.

Moreover, the decision to send a child to a private school is an intensely individual one. Carter presented no evidence C.R. had any special educational needs, gifts, or handicaps. She merely stated she had enrolled him in a private school with annual tuition costs of $650. While we do not fault Carter for sending her son to a private school, neither can we say the trial court abused its discretion in refusing to increase the child support award to reflect C.R.’s extraordinary educational expenses.

C. Employment Related Child Care Expenses

A similar analysis applies to the exclusion of Carter’s employment related child care costs.

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Bluebook (online)
563 N.E.2d 183, 1990 Ind. App. LEXIS 1606, 1990 WL 201428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-ex-rel-carter-v-morrow-indctapp-1990.