Eric Smith v. Shanna M. LaMar (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2020
• Docket: 20A-JP-657
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 21 2020, 9:53 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE Eric D. Smith Greenwood, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eric Smith, December 21, 2020 Appellant, Court of Appeals Case No. 20A-JP-657 v. Appeal from the Shelby Superior Court Shanna M. LaMar, The Honorable Andrew S. Appellee. Roesener, Special Judge Trial Court Cause No. 73D01-1606-JP-43

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 1 of 10 [1] Eric Smith, pro se, appeals and claims the trial court erred in modifying his child

support obligation. We reverse and remand.

Facts and Procedural History

[2] Smith and Shanna LaMar have a child together. On November 28, 2017, the

trial court entered an order that Smith pay child support of $129.15 weekly, his

arrearage was $9,557.10 as of November 24, 2017, and he pay an additional

$20.85 per week toward the arrearage for a total weekly payment of $150.

[3] On December 30, 2019, Smith, pro se, filed a petition for modification of child

support stating his income had been reduced since the prior support order. He

attached payroll statements to his petition for the pay periods ending November

16 and November 30, 2019, which show that he had a regular hourly rate of

$11, an overtime hourly rate of $16.50, and year-to-date earnings of $32,651.29

as of November 30, 2019.1

[4] On February 24, 2020, the court held an evidentiary hearing at which Smith

appeared pro se and LaMar appeared by counsel. The court admitted: Smith’s

W-2 for 2019, indicating taxable wages that year of $30,005.38; a payroll

statement for LaMar indicating she earned $18.27 per hour; and Smith’s

proposed child support worksheet.

1 The November 30, 2019 payroll statement also indicates there had been year-to-date deductions for health and life insurance totaling $3,310.25.

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 2 of 10 [5] Smith testified that he earned $11 per hour, that in issuing its original support

order the court had used a tax return showing he made over $36,000 or $38,000

per year, that since then his hours and pay had been reduced, and that his

overtime pay is irregular and not guaranteed. He testified he worked in the

home health care field and was also a full-time student. He indicated he paid

$1,000 in support on December 7th, $150 on December 20th and January 4th,

$250 on January 8th, $200 on January 18th, and $150 on February 1st and

February 22nd. Transcript Volume II at 11. He testified that one of the reasons

he has “been able to pay a little better” is because he “no longer ha[s] a home

mortgage” and had been able to eliminate some debt. Id. He stated “I’m not

tryin’ to get away from paying $150.00. It’s just I can’t. . . . I’m only making

$11.00 an hour.” Id. He testified the wages shown on his 2019 W-2 included

some overtime, “so that may not necessarily be my total for this year,” and “[i]f

I do not get that overtime, it could be less.” Id. at 13.

[6] When questioned by LaMar’s counsel, Smith indicated that his payroll

statement for the pay period ending November 30, 2019, showed that he had

year-to-date earnings of $32,651.29, that he worked and was paid during

December 2019, and that he used the wages on his W-2 to prepare his tax

return. When asked “[h]ow much of a profit did you receive from the sale of

your house,” Smith answered “it was a lot and I was able to pay off my debt

and pay more child support with it.” Id. at 23. When asked “how much is a lot

. . . [o]ver $20,000,” he replied “[y]eah,” when asked “[o]ver $30,000,” he said

“[p]robably, yeah,” and when asked “[o]ver $40,000,” he answered “[n]o . . . it

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 3 of 10 wasn’t that much.” Id. When asked “[y]ou realize that you were 11 thousand

to 12 thousand behind in child support and you used only a thousand dollars

out of that 30 to 40 thousand dollars you received toward back support,” Smith

replied “I paid more in child support on that with that money.” Id. Smith

testified he closed on the sale of his house on November 26th.

[7] When asked “your arrearage as of April, 2018 . . . was over $11,700.00? And

you . . . have not made all your child support payments on time since that order

of May 17, 2018, have you,” 2 he testified “[n]o I haven’t been able to. I can

only pay what I can pay.” Id. at 24. He testified “I’ve had other legal

obligations. I had debts to clear away, medical bills” and “my interpretation of

it is - pay off everything where I don’t get in other legal issues - or other legal

problems like gettin’ sued.” Id. at 25. He testified: “I was able to eliminate my

car payment, which now I’m going to be able to pay more child support per

week because that – because that debt is gone. Now I can use that money for

child support. That’s why I paid that debt off with the money from the house.”

Id. at 25-26. He also stated “I paid off medical bills with that,” “[n]ow I don’t

have to worry about gettin’ sued and having to pay maybe other court fees and

fines and gettin’ garnished,” “I paid off credit cards too,” and “[s]o now that

that money’s gone from the credit card payments, now I’m able to pay the child

support.” Id. at 26.

2 The trial court entered an order on May 17, 2018, stating that Smith’s arrearage as of April 13, 2018, was $11,707.10.

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 4 of 10 [8] LaMar testified that she earned $18.27 per hour, she maintained medical,

dental, and vision insurance, and the insurance premiums were reflected on her

payroll statement. She testified that Smith’s arrearage had increased since April

2018. When asked “[b]ecause your independent indication (sic) indicates that

[the] arrearage may have grown to more than $20,000.00, is that correct,” she

stated “[t]hat’s correct.” Id. at 36-37.

[9] On March 5, 2020, Smith filed a Motion to Re-Open Evidence arguing LaMar

provided no documentation of his actual arrearage and that he cannot afford to

pay $150 a week while making $11 an hour.

[10] On March 6, 2020, the trial court issued an order which provided:

1. [Smith’s] “Verified Petition for Modification of Child Support” is GRANTED.

2. [Smith’s] current weekly child support obligation is one hundred twenty-nine dollars and fifteen cents ($129.15).

3. [Smith], in addition to the income from his employment, received between thirty thousand dollars ($30,000.00) and forty thousand dollars ($40,000.00) in income based on the sale of his home in 2019.

4. Said income was not reinvested in the purchase of a new home but was, instead, used to purchase a vehicle and pay other debts owed by [Smith].

5. Pursuant to the Commentary 3(A) to the Indiana Child Support Guidelines, irregular income “ . . . is includable in the total income approach taken by the Guidelines . . . .”

6. Utilizing the ratio set forth in the Commentary to the Indiana Child Support Guidelines [See Commentary to Guideline 3A(b)], [Smith]

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 5 of 10 would owe [LaMar] two thousand three hundred eighty dollars ($2380.00) of the income earned from the sale of his residence in 2019.

7. Two thousand three hundred eighty dollars ($2380.00) expressed as weekly gross income is forty-six dollars ($46.00).

8. This weekly amount is in addition to [Smith’s] gross weekly income from his employment of six hundred eighty-six dollars ($686.00) and results in a total gross weekly income of seven hundred thirty-two dollars ($732.00).

9. Effective February 21, 2020, [Smith’s] weekly child support obligation is modified to seventy-four dollars ($74.00).

10. [Smith] has a child support arrearage obligation in excess of eleven thousand dollars ($11,000.00).

11. The Court, therefore, finds that in addition to [Smith’s] modified weekly child support obligation of seventy-four dollars ($74.00), [Smith] shall pay an additional seventy dollars ($70.00) per week toward said arrearage until paid in full. [Smith’s] total weekly support obligation is, therefore, one hundred forty-four dollars ($144.00).

Appellant’s Appendix Volume II at 32-33. The court attached a child support

obligation worksheet which included a weekly gross income for Smith of $732,

a weekly gross income for LaMar of $731, an adjustment for LaMar’s payment

of weekly health insurance premiums of $23.38, an adjustment for a parenting

time credit for Smith, and Smith’s weekly support obligation of $74. The court

also denied Smith’s Motion to Re-Open Evidence.

Discussion

[11] LaMar has not filed an appellee’s brief, and we need not undertake the burden

of developing arguments for her. See Meisberger v. Bishop, 15 N.E.3d 653, 656

(Ind. Ct. App. 2014). We apply a less stringent standard of review and reverse

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 6 of 10 if Smith establishes prima facie error. See id. Prima facie is defined as “at first

sight, on first appearance, or on the face of it.” Graziani v. D & R Const., 39

N.E.3d 688, 690 (Ind. Ct. App. 2015).

[12] Smith maintains there was insufficient evidence to support the amount of his

arrearage and the trial court erred in ordering him to pay an additional $70

weekly towards his arrearage. He also argues the court should not have

included $46 in his weekly gross income due to the sale of his house and the

proceeds were used to pay off his debt, cannot become available again as he has

no other house to sell, are unavailable for his immediate use, and do not

constitute actual income.

[13] We set aside child support modifications where they are clearly erroneous. Lea

v. Lea, 691 N.E.2d 1214, 1217 (Ind. 1998). Findings are clearly erroneous when

the record contains no facts to support them either directly or by inference.

Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). Ind. Code § 31-16-8-1

governs modification of child support orders and provides in part:

(a) Provisions of an order with respect to child support . . . may be modified or revoked.

(b) Except as provided in section 2 of this chapter, and subject to subsection (d), 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

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 7 of 10 (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.

[14] Indiana Child Support Guideline 3A(1) states “weekly gross income” is defined

“as actual weekly gross income of the parent if employed to full capacity,

potential income if unemployed or underemployed, and the value of ‘in‑kind’

benefits received by the parent” and includes income “from salaries, wages,

commissions, bonuses, overtime, . . . [and] capital gains . . . .”

[15] The Commentary to Guideline 3A provides that “[t]here are numerous forms of

income that are irregular or nonguaranteed, which cause difficulty in accurately

determining the gross income of a party” and “[o]vertime, commissions,

bonuses, . . . [and] voluntary extra work and extra hours worked by a

professional are all illustrations.” Subsection 2(b) to Commentary to Guideline

3A. It provides “[c]are should be taken to set support based on dependable

income, while at the same time providing children with the support to which

they are entitled.” Id.

[16] This Court has held that “‘actual income’ as used in the Guidelines necessarily

implies that the income be not only existing in fact but also currently received

by the parent and available for his or her immediate use.” Carmichael v. Siegel,

754 N.E.2d 619, 628 (Ind. Ct. App. 2001).

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 8 of 10 [17] The record reveals Smith’s testimony that he probably received over $30,000

when he sold his house. The trial court included an amount of $46 in Smith’s

weekly gross income attributable to the sale. However, Smith’s receipt of funds

was a one-time event, not regular or dependable income, when he closed on the

sale of his house. As the Commentary emphasizes, “[c]are should be taken to

set support based on dependable income.” Subsection 2(b) to Commentary to

Guideline 3A. Moreover, the evidence does not establish the extent to which

the proceeds of the sale constituted income. While weekly gross income may

include capital gains, the evidence does not reveal the prices at which Smith

purchased and sold his home or establish that the sale resulted in a gain.

Further, while Lamar’s counsel phrased its question to Smith as how much “of

a profit” he received from the sale, see Transcript Volume II at 23, Smith’s

testimony and responses at least imply that he was referring to the total

proceeds he received. Smith testified that he had a home mortgage, and the

proceeds he received represent equity by making mortgage payments but not

necessarily a gain.3 Smith testified that he used the sale proceeds to eliminate

his car payment, pay off medical and credit card debt, and pay some child

support. Based on the record before us, we conclude Smith has established

prima facie error. We reverse the court’s findings that Smith’s weekly gross

income includes $46 attributable to the sale of his house.

3 Also, there is no assertion Smith held the house for business purposes. See Bass v. Bass, 779 N.E.2d 582, 594 (Ind. Ct. App. 2002) (the sale of business property may impact a parent’s income under Child Support Guideline 3(A)(2)), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 9 of 10 [18] In addition, the court found Smith’s arrearage to be in excess of $11,000.

However, the only evidence of the arrearage was LaMar’s testimony that the

arrearage had increased since April of 2018 and “may have grown to more than

$20,000.00.” Id. at 36-37. Smith indicated he had not made all of his support

payments on time but testified as to his various payments in December 2019

through February 2020. Further, the court ordered Smith to pay an additional

$70 per week toward his arrearage for a total weekly payment of $144. Thus,

while the court reduced Smith’s basic weekly child support obligation of

$129.15 by over forty percent, it reduced his total weekly obligation of $150 by

only four percent. The court did not make any findings that, although its

application of the child support guidelines called for a significant decrease of his

basic weekly child support obligation, Smith nevertheless had an ability to pay

an additional $70 weekly toward his arrearage.

[19] Based on the foregoing, we remand with instructions to enter an amended child

support modification order which sets Smith’s basic weekly child support

obligation, determines the exact amount of his arrearage, and sets a reasonable

amount that he must pay weekly toward the arrearage based on his weekly

income.

[20] Reversed and remanded.

Vaidik, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JP-657 | December 21, 2020 Page 10 of 10