Davis v. Knafel

837 N.E.2d 585, 2005 Ind. App. LEXIS 2180, 2005 WL 3111779
CourtIndiana Court of Appeals
DecidedNovember 22, 2005
Docket49A02-0503-JV-257
StatusPublished
Cited by3 cases

This text of 837 N.E.2d 585 (Davis v. Knafel) 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
Davis v. Knafel, 837 N.E.2d 585, 2005 Ind. App. LEXIS 2180, 2005 WL 3111779 (Ind. Ct. App. 2005).

Opinions

OPINION

BAKER, Judge.

Appellant-respondent Elliott Lydell Davis1 appeals the trial court's order granting appellee-petitioner Karla Kay Knafel's motion to modify child support. Specifically, Davis contends that the trial court erred in increasing child support for T.D., the parties' minor child, from $760 per week to $2,308 per week. Finding that there have not been changed circumstances so substantial and continuing as to make the terms of the original child support order unreasonable, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

FACTS

T.D. was born to Knafel and Davis, who were never married, on February 22, 2000. However, the name of Knafel's current husband was placed on T.D.'s birth certificate as the father. On July 2, 2001, an agreed paternity decree resulted in the determination that Davis was the biological and legal father of T.D. Kunafel was given custody of TD. Davis's weekly income at the time as an NBA player was $121,827, and Knafel's weekly income was $450. The Indiana Child Support Guidelines yielded the sum of $758 per week in child support payments, and the parties agreed that Davis would pay $760 per week.

On March 21, 2003, Knafel filed a petition to modify child support. The petition alleged a substantial change in cireum-stances since the entry of the decree that made its continued operation unreasonable, namely, Davis's income had increased substantially-from $6,309,004 annually to $9,061,875 for the 2003-04 season and $10,068,750 for the 2004-05 season. Ten percent of Davis's income is withheld from him and paid to the NBA.

The trial court held a hearing on the petition on November 29, 2004. Knafel submitted worksheets that indicated that her income was $206 per week. On January 6, 2005, the second day of the hearing, Knafel testified on cross-examination that her income was approximately $750 per week. Knafel further testified that she and her husband own one 6,000 square foot house in Greenwood, which they purchased for $408,000. Knafel described her residence as "a normal house" rather than the [587]*587"million dollar home" that "Dale's son should be living in." Tr. p. 188.

From testimony elicited at the deposition and at the hearing, Davis acknowledged having a daughter for whom he voluntarily pays child support of $855 per week. Davis's financial declaration shows monthly expenses of approximately $80,000, excluding monthly taxes in the approximate amount of $293,747.25. Davis owns three homes, one of which he purchased during the pendency of this petition that is valued at $1,700,000.

Davis has no set parenting time schedule with TD., and he exercises overnight parenting time with T.D. approximately four or five times each year. It was undisputed that Davis was current on his previously-ordered child support payments and that T.D.'s needs were being met. But Knafel testified that she wanted T.D. to have the kind of lifestyle that he would have if he lived with Davis, for example, by attending private school, going on more vacations, and wearing nicer clothes.

On March 4, 2005, the trial court entered its findings of fact, conclusions of law, and judgment in favor of Knafel. The trial court ordered that Davis's child support obligation should be increased from $760 per week to $2,808 per week, retroactive to March 21, 2003, and that Davis should pay Knafel's attorney's fees. In its findings, the trial court acknowledged that the application of the Child Support Guidelines would increase Davis's child support payment by only $7.15 per week, but deviation from the Child Support Guidelines was necessary in order to "achieve the goal of providing [T.D.] with a standard of living that he would have enjoyed had his parents been married and the marriage remained in tact [sic]." Appellant's App. p. 833. Davis now appeals.

DISCUSSION AND DECISION

Davis contends that the trial court erred in increasing his child support obligation from $760 per week to $2,808 per week. Specifically, he argues that there was no substantial and continuing change of circumstances that warranted the increase in child support.

Generally, decisions regarding child support are left to the sound discretion of the trial court. On appeal, we will not disturb a trial court's order modifying child support unless the trial court abused its discretion or erred as a matter of law. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind.Ct.App.2002). "Therefore, appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal'" Bettencourt v. Ford, 822 N.E.2d 989, 997 (Ind.Ct.App.2005) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)).

Where, as here, the trial court enters findings of fact and conclusions thereon, we consider whether the evidence supports the findings and whether the findings support the judgment. Id. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. In order to determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id.

Initially, we address Knafel's contention that Davis's argument is waived for failing to present it to the trial court. Knafel asserts that Davis did not advance the argument that his increase in income did not amount to a substantial and continuing 'change in cireumstances and that [588]*588"this case was tried on the issue of whether or not, in determining the amount of support that [Davis] should pay, the Trial Court should deviate from the formula set forth in paragraph 2 of the Commentary to Child.Supp. G.3(D)." Appellant's Br. p. 6.

The petitioner has the burden of proof in child support modification cases, MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind.2005), and the record reveals that Knafel directed her arguments to the issue of whether the trial court should deviate from the Child Support Guidelines. Appellant's App. p. 88-91, 109-12, 114. Davis defended against this argument. He was not required to respond to arguments that Knafel did not make.

Modification of child support orders is controlled by Indiana Code section 31-14 11-8, and it states:

A support order may be modified or revoked upon a showing:
(1) of a substantial change in circumstances that makes the terms unreasonable; or
(2) that:
(A) a person 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 support order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

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Related

Cooper v. Fazio
858 N.E.2d 1072 (Indiana Court of Appeals, 2006)
Davis v. Knafel
837 N.E.2d 585 (Indiana Court of Appeals, 2005)

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837 N.E.2d 585, 2005 Ind. App. LEXIS 2180, 2005 WL 3111779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-knafel-indctapp-2005.