In Re Paternity of EMP

722 N.E.2d 349, 2000 WL 31830
CourtIndiana Court of Appeals
DecidedJanuary 13, 2000
Docket45A04-9908-JV-346
StatusPublished
Cited by13 cases

This text of 722 N.E.2d 349 (In Re Paternity of EMP) 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
In Re Paternity of EMP, 722 N.E.2d 349, 2000 WL 31830 (Ind. Ct. App. 2000).

Opinion

722 N.E.2d 349 (2000)

In re The Matter of the PATERNITY OF E.M.P.
Darren Beavers, Appellant-Petitioner,
v.
Eva Eskew, Appellee-Respondent.

No. 45A04-9908-JV-346.

Court of Appeals of Indiana.

January 13, 2000.

*350 George R. Livarchik, Livarchik & Farahmand, Chesterton, Indiana, Attorney for Appellant.

James E. Rice, Rice & Kapitan, Highland, Indiana, Attorney for Appellee.

OPINION

SHARPNACK, Chief Judge

Darren Beavers ("Father") appeals from the trial court's order modifying his child support obligation. Father raises the following issues, which we restate as:

1) whether the trial court erred in finding that Father was voluntarily underemployed and in calculating his child support obligation based upon his potential income;

2) whether the trial court erred in ordering Father to pay Mother's attorney fees; and

3) whether the trial court erred in failing to reduce Father's gross weekly wages by the actual amount of court ordered support for his two subsequent children.

We affirm in part, reverse in part, and remand to the trial court.

The facts most favorable to the judgment follow. On April 20, 1992, E.P. was born out-of-wedlock to Eva Eskew ("Mother"). On January 14, 1994, a paternity order was entered which established that Beavers was the father of E.P. Father was ordered to pay $45.00 per week in child support.

Sometime after E.P.'s birth, Father had two subsequent children with his wife. However, this marriage ended in divorce in 1997. Father's ex-wife was awarded custody of the children, and Father was ordered to pay $165.00 per week in child support.

*351 Then, on June 8, 1998, Mother filed a petition for modification seeking an increase in the amount of support previously ordered for E.P. and requesting attorney fees. At the time Mother filed the petition for modification, Father was employed as a garbage collector. As a garbage collector, Father earned $34,707.78 in gross wages in 1996. In 1997, he earned $36,027.69. Father's earnings again increased in 1998, earning a gross salary of $46,680.00 for the year. However, on June 1, 1999, just eight days before the evidentiary hearing on Mother's petition for modification was held, Father quit his job as a garbage collector and began working for GTE. His rate of pay at the time of the hearing was $12.10 per hour, which equates to $484.00 in gross weekly wages, or $25,168.00 yearly. Father testified that he changed jobs, with a resulting significant decrease in pay, due to his bad knees, health concerns resulting from previous injuries incurred during his employment as a garbage collector, and to receive better benefits. With regard to Mother, it was uncontested that she has two subsequent born children who reside with her and that she has gross weekly wages of $600.00 per week, or $31,200.00 per year.

The trial court found that Father was voluntarily underemployed and therefore based its support order on his 1998 wages. However, because Father has two subsequent children, the trial court reduced the amount of his weekly wages, which the support order was based on, by .903, the appropriate factor established by the Child Support Guidelines for two children. Accordingly, Father was ordered to pay $115.80 per week in child support for E.P. The trial court also ordered Father to pay Mother's attorney fees in the amount of $800.00.

Modification of a child support order requires a showing of "a substantial change in circumstances that makes the terms unreasonable." Ind.Code § 31-14-11-8; see also Ind. Child Support Guideline 4 ("[t]he provisions of a child support order may be modified only if there is a substantial and continuing change of circumstances"). In reviewing a determination of whether child support should be modified, we will reverse the decision only for an abuse of discretion. Elliott v. Elliott, 634 N.E.2d 1345, 1348 (Ind.Ct.App. 1994), reh'g denied. We review the evidence most favorable to the judgment without reweighing the evidence or reassessing the credibility of the witnesses. Id. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, including any reasonable inferences therefrom. Id.

I.

As his first assignment of error, Father alleges that the trial court erred in finding that he was voluntarily underemployed and in calculating his child support obligation based upon his potential income. In Indiana, when a parent becomes voluntarily unemployed or underemployed, the trial court must calculate support based upon a determination of potential income. Ind. Child Support Guideline 3(A); In re Paternity of Buehler, 576 N.E.2d 1354, 1355 (Ind.Ct.App.1991). The amount of potential income to be used is determined by considering the obligor's potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. Id. The purposes behind determining potential income are to "discourage a parent from taking a lower paying job to avoid the payment of significant support" and to "fairly allocate the support obligation when one parent remarries, and because of the income of the new spouse, chooses not to be employed." Child Supp.G. 3, cmt. 2c; see also, Buehler, 576 N.E.2d at 1355-1356. However, child support orders cannot be used to force parents to work to their full economic potential or make their career decisions based strictly upon the *352 size of potential paychecks. Buehler, 576 N.E.2d at 1356.

Father argues that because he has "legitimate reasons for changing to a lower paying job" and because "there is no evidence he changed jobs to evade a child support obligation," the trial court erred in finding him underemployed. Appellant's Brief, p. 22. Citing numerous decisions from this court, Father asserts that "[n]o known Indiana decision has found a parent is voluntarily unemployed or underemployed where the evidence shows some other legitimate reason to leave employment or take a lower paying position." Appellant's Brief, p. 14; Reply Brief, p. 1. Although the majority of the cases cited by Father are factually distinguishable, we do find support for Father's position in Elliott and Ullery. Elliott v. Elliott, 634 N.E.2d 1345 (Ind.Ct.App.1994), reh'g denied; Ullery v. Ullery, 605 N.E.2d 214 (Ind.Ct.App. 1992), trans. denied.

In Elliott, the father was fired from his job as a truck driver without good cause. Elliott, 634 N.E.2d at 1347. After a successful hearing seeking unemployment benefits, the father did not seek reemployment with his original employer because his former manager was no longer friendly with him. Id. at 1349. After four months of unemployment, he found another job making $80.00 less per week. Id.

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Bluebook (online)
722 N.E.2d 349, 2000 WL 31830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-paternity-of-emp-indctapp-2000.