Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited Apr 14 2014, 9:23 am before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JILL S. SWOPE MARGO R. BABINEAUX Sterba & Swope, LLP Meinzer & Babineaux LLC Schererville, Indiana St. John, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: ) ) ANNETTE M. HUSEMAN, f/k/a ) ANNETTE M. MANTIS, ) ) Appellant, ) ) vs. ) No. 45A04-1307-DR-351 ) ANGELO N. MANTIS, ) ) Appellee. )
APPEAL FROM THE LAKE CIRCUIT COURT The Honorable George C. Paras, Judge The Honorable Michael A. Sarafin, Magistrate Cause No. 45C01-0302-DR-123
April 14, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Annette Huseman (“Mother”) appeals the denial of her motion to correct errors
and the trial court’s order entered on April 23, 2013. Mother raises two issues which we
consolidate and restate as whether the court abused its discretion or erred in denying her
motion to correct errors and in entering its April 23, 2013 order. We affirm in part,
reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
Mother and Angelo Mantis (“Father”) married and had two children. On February
5, 2004, the parties entered into a Settlement Agreement which contained provisions
related to the division of the marital estate and to child support. The parties’ marriage
was dissolved by a decree of dissolution (“Decree”) which incorporated by reference the
terms of the Settlement Agreement and which was approved by the trial court and filed
on February 17, 2004.
The Settlement Agreement provided that Mother would have physical custody of
the children and, under Paragraph 2.A. of Article III (“Paragraph 2.A.”), that Father
“shall pay to [Mother] the sum of Ninety-two and 34/100 ($92.34) Dollars per week as
and for base child support of the parties’ minor children.” Appellant’s Appendix at 16.
Additionally, Paragraph 2.B. of Article III of the Settlement Agreement (“Paragraph
2.B.”) provided in part:
[T]he Parties expressly acknowledge that [Father’s] employer has moved him from a salaried status to a base salary plus commission pay plan. The child support obligation of [Father] as set forth in the preceding paragraph is premised solely upon [Father’s] anticipated 2004 base salary. While [Mother] expressly reserves the right to re-visit [Father’s] child support obligation without being subjected to the conditions for support modification as set forth in the Child Support Guidelines, the parties agree that [Father] shall pay to [Mother] [a] monthly sum equal to twenty-seven (27%) percent (basic support of $285.00 ÷ by a combined weekly gross 2 income of $1,073.00 = 27%)[1] of his gross monthly earnings in excess of his base weekly salary of Four Hundred ($400.00) Dollars as and for additional support of the parties’ minor children. Said additional support is calculated in accordance with the Indiana Child Support Guidelines Commentary to Guideline 3. Documentation of [Father’s] monthly gross earnings shall be provided to [Mother] at the time of the payment of the additional support.
Id. at 17. The child support obligation worksheet attached to the Settlement Agreement
showed Father’s weekly gross income as $400, Mother’s weekly gross income as $673,
and a recommended support obligation by Father of $92.34. The Settlement Agreement
also contained provisions related to the payment of health-related expenses on behalf of
the children, the designation of life insurance beneficiaries, and the parties’ agreement as
to dependency exemptions.
On February 23, 2012, Mother filed a Verified Petition for Rule to Show Cause
and for Modification of Support which alleged that Father was required to pay support of
$92.34 per week premised upon his base salary plus a monthly sum equal to a percentage
of his gross earnings in excess of his base weekly salary of $400, that Father failed to
remit timely payments with respect to his base salary and his gross earnings in excess of
his base salary, and that Father failed to submit documentation to Mother evidencing his
gross earnings. Mother also argued that changes in circumstances warranted a
modification of Father’s support obligation. On May 3, 2012, Father filed a Petition for
Rule to Show Cause alleging that Mother did not permit him to have parenting time at
1 As noted by the trial court in its April 23, 2013 order, at the December 3, 2012 hearing, “Mother conceded that a mathematical error is reflected in the [Settlement] Agreement and that the amount should have been 22.4% and not 27%.” Appellant’s Appendix at 3. At the hearing, Mother’s counsel stated “it appears that the percentage was improperly calculated” and “so I’m prepared to stipulate that rather than the twenty-seven percent that is reflected in the Settlement Agreement, the correct computation should have been point two-two-four [and] my calculations are premised upon twenty-two point four percent . . . rather than twenty-seven percent.” Transcript at 13. 3 certain times, that Mother failed to pay the children’s uninsured health expenses and that
he paid more than his share of those expenses required under the Decree, that Mother
failed to comply with those terms of the Decree related to the distribution of the proceeds
of the sale of the marital home, and that Mother claimed a dependency exemption in one
year in disregard of the court’s order.
On December 3, 2012, the court held a hearing at which the parties presented
evidence and argument related to Father’s arrearage and child support obligation. Mother
presented Father’s gross income for the years 2004 through 2011 and a calculation of
Father’s arrearage under Paragraph 2.B. of the Settlement Agreement, which showed that
Father’s arrearage based upon his gross earnings in excess of his base salary was equal to
a total of $47,495.2 Further, Mother presented Father’s child support payment history
and submitted a child support worksheet showing Father’s weekly gross income to be
$1,669.08, her weekly gross income to be $958.85, and a recommended support
obligation of $275.98 from Father. Mother also presented evidence showing Father’s
payments with respect to his weekly support obligation3 and other purchases made by
Father for the children’s extracurricular activities and noted that all of Father’s payments
since 2008 with the exception of one payment in 2011 were non-conforming payments
but that she gave Father credit for all of those non-conforming payments. In particular,
2 In her computation, Mother set forth Father’s gross income for each year from 2004 to 2011, subtracted his base income of $20,800 in each year (and also subtracted Father’s relocation expenses in the year 2011), and multiplied the result by the percentage of 22.4%. 3 Mother submitted a payment history document showing Father’s support payments through the clerk’s office (which shows a number of payments for $92.34) and another payment history document showing all of Father’s payments including those which were not made through the clerk’s office. The document which includes all of Father’s payments shows a weekly amount due of $93.24 rather than $92.34 as set forth in the Settlement Agreement. 4 Mother argued that, based upon the support payments made by Father, Father incurred an
arrearage of $5,539.274 with respect to his support obligation based on his base salary of
$400 per week under the Settlement Agreement and that Father made other purchases for
the children of $2,298.37. Mother argued that, as a result, Father’s total support
arrearage consisted of $47,495 for Father’s arrearage with respect to his gross income in
excess of his base salary for the years 2004 through 2011 plus $5,539.27 for Father’s
arrearage with respect to his base weekly support during that time period and less a credit
of $833 related to a credit card payment which Mother was required but failed to make,
for an aggregate arrearage of $52,201.27. Mother requested that Father’s child support
obligation be set at $275 per week based upon the child support worksheet she submitted.
She also submitted her cost for medical, dental, and vision insurance coverage through
her employer.
Father by counsel argued that, at the time of the Decree, he was employed by
Tones Pressler Company (“TPC”), and that, approximately three months after the entry of
the Decree, he received new employment at another company, that Mother knew of his
new employment, and that he was unemployed off and on from 2006 through 2009.
Father argued he did not believe that he “was supposed to do some sort of calculation and
pay additional support,” that “[h]e did not understand [the Settlement Agreement] to
mean this continues on from job to job to job,” and that “to apply it to each and every job
thereafter . . . would be unjust.” Transcript at 29. Father noted that he took a transfer to
California and that his cost of living was substantially higher in California than Indiana.
4 It appears that this amount may have been computed in part using a weekly base support of $93.24 instead of $92.34 as set forth in the Settlement Agreement. 5 He requested that any new support order be gradually phased in so that he could adjust
his life accordingly. He testified that he moved to California in October 2011, that he had
been recently remarried in November 2011, and that he had a child in December 2011.
He presented a child support worksheet showing his weekly gross income to be
$1,343.52, Mother’s weekly gross income to be $968.31, and a recommended support
obligation of Father of $207. The worksheet he submitted included the salary he had
earned in Indiana and not the increased salary he was earning in California. In addition,
Father’s worksheet included a credit for Father for parenting time which was not included
on Mother’s worksheet and did not include a credit for Mother for health insurance
premium payments which was included on Mother’s worksheet.
The court asked why Father did not file any motions to modify child support
during the previous eight years given that he had a number of job changes, and Father’s
counsel responded that Father did try to keep up with support, that he was “not thinking a
twenty-seven percent factor,” that Father “will tell you that [his attorney at the time of the
Settlement Agreement] did not explain this to him and he did not understand that it would
carry on to each and every employer,” and that “the way he read it, it was based upon that
employment situation.” Id. at 41, 43. The court asked if Father was, in essence, asking it
to modify the Settlement Agreement, and Father’s counsel replied he did not believe so
because the Settlement Agreement expressly discussed “that job that he had,” further
discussed Mother’s “right to revisit, even without waiting the one year,” and that
“everybody knew at the time his job was up in the air.” Id. at 44. Father’s counsel also
stated that Father had four employers since 2004.
6 On April 23, 2013, the court entered an Order Upon Hearing Held On December
3, 2012, in which the court noted that, at the hearing, Mother withdrew the aspects of her
request seeking to hold Father in contempt and instead requested that the court address
only the issues of Father’s support arrearage. The court noted that Mother conceded at
the hearing that a mathematical error is reflected in the Settlement Agreement and that
the amount should have been 22.4% and not 27%. The court found that “having
considered the [Settlement] Agreement and the arguments finds that Father’s proffered
interpretation of the [Settlement] Agreement is the most reasonable construction of [its]
provisions upon child support based on Father’s irregular income,” that “[t]he irregular
income provisions of the [Settlement] Agreement were based upon Father’s employment
at the time that the Parties entered into such agreement and clearly reference what was, at
the time, a clear change in Father’s compensation structure with his then-current
employer,” that “[m]oreover, there is no indication in the Agreement that the Irregular
income child support provision was intended to apply in perpetuity across all of Father’s
subsequent employers,” and thus that “Father’s current child support of $92.34 per week
remained in effect since the entry of the [Settlement] Agreement.” Appellant’s Appendix
at 37. The court found that Father’s total support arrearage as of the December 3, 2012
hearing was $5,539.27, that the amount should be credited in the amount of $833 for
funds that Father paid to satisfy certain marital obligations, and thus that the total
arrearage in current support is $4,706.27.
The court further found that the evidence demonstrated a substantial change in
circumstances since the entry of the Settlement Agreement such that its terms on child
support were no longer reasonable, determined that Father’s weekly gross income was 7 $1,559, determined that Mother’s weekly gross income was $958, allocated parenting
time credit for Father, found that Mother provided health insurance for the children, and
established Father’s weekly current child support to be $239. The court ordered that the
modification of support be retroactive to December 3, 2012, that Father’s total arrearage
was $7,639.47, consisting of the arrearage of $4,706.27 and the arrearage due from
December 3, 2012 to the date of the order of “$2,933.20 (20 weeks at $146.66 ($239.00-
$92.34)),” that Father should pay an additional amount of $26 per week until his
arrearage was paid in full, and that thus Father’s weekly child support obligation was set
at $265. Id. at 38. Finally, the court ordered that Father’s new support obligation be
phased in, that Father pay $150 per week from the date of the order until May 31, 2013,
that he pay $200 beginning on June 7, 2013, and that he pay $265 beginning on August 5,
2013.
Mother filed a motion to correct errors arguing that the court erred in failing to
enforce the clear and unambiguous terms of the original support order, that “[t]he
percentage of additional income portion of the child support Order . . . was based upon
potential gross monthly earnings, and did not specify that those earnings had to be
commissions or only from the job that Father had at the time,” that Father continued to
receive commission income, as well as salary and bonus income, from various
employment positions he held,” and that “[a]s a result, Father’s income still fluctuated
and was still based upon irregular components of various types.” Id. at 43. Mother also
argued that the court erred in phasing in the modified support obligation and failing to
modify Father’s support retroactively to the filing of Mother’s February 23, 2012
petition. The court denied Mother’s motion to correct errors. 8 DISCUSSION
The issue is whether the trial court abused its discretion or erred in denying her
motion to correct errors and in entering its April 23, 2013 order. We generally review
rulings on motions to correct error for an abuse of discretion. Ind. Bureau of Motor
Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct. App. 2009); Speedway SuperAmerica,
LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. An abuse of
discretion occurs if the trial court’s decision is against the logic and effect of the facts and
circumstances before it, or the reasonable inferences drawn therefrom. Lighty v. Lighty,
879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g denied. “We place a ‘strong emphasis
on trial court discretion in determining child support obligations’ and regularly
acknowledge ‘the principle that child support modifications will not be set aside unless
they are clearly erroneous.’” Lea v. Lea, 691 N.E.2d 1214, 1217 (Ind. 1998) (quoting
Stultz v. Stultz, 659 N.E.2d 125, 128 (Ind. 1995)). “Findings are clearly erroneous only
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). A judgment is clearly erroneous if it
relies on an incorrect legal standard. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206,
1210 (Ind. 2000), reh’g denied. We give due regard to the trial court’s ability to assess
the credibility of witnesses. Id. While we defer substantially to findings of fact, we do
not do so to conclusions of law. Id. We do not reweigh the evidence; rather we consider
the evidence most favorable to the judgment with all reasonable inferences drawn in
favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).
Mother contends that the court erred in modifying the child support obligation
agreed upon by the parties in the Settlement Agreement by failing to enforce its clear and 9 unambiguous terms. Specifically, Mother asserts that the plain language of the
Settlement Agreement provided for the method of child support computation at all times,
that if the parties had intended that it apply only to Father’s job at the time it would have
designated such, and that if the parties had intended to later completely eliminate the
percentage of earnings in excess of the base weekly salary then they would have provided
as such in the agreement. Mother further argues that Father never provided her with
documentation of his gross monthly earnings and contends that the court erred in phasing
in his newly modified support obligation as he had ample time to adjust to the notion of
paying additional child support from the date she filed her petition on February 23, 2012.
She also contends that the court erred in modifying support as of the date of the hearing
on December 3, 2012 instead of the date she filed her petition.
Father maintains that the court’s order should be affirmed and that the court
correctly interpreted the Settlement Agreement. He points to the language of Paragraph
2.B. of the Settlement Agreement which states that the support obligation “set forth in the
preceding paragraph is premised solely upon [his] anticipated 2004 base salary.”
Appellant’s Brief at 9-10 (citing Appellant’s Appendix at 17). Father argues that, if the
parties had wanted the irregular income provisions to apply in perpetuity across all
employers, then they would not have drafted an agreement that repeatedly referred to the
fact that the provisions were “expressly” based upon Father’s current employment and
that the court’s conclusion that the provisions were not intended to apply to other
employers should be affirmed. Father also argues that the court’s decision to phase in his
modified support obligation was not an abuse of discretion.
10 In her reply brief, Mother argues that the fact that the agreement was based upon
then-current income and employment of the parties does not render any of those
agreements modified, partially enforceable or ambiguous when one or both parents
changed jobs. She contends that the phrase “premised solely upon Husband’s anticipated
2004 base salary” does not equate to an agreement that provides for modification upon a
change in job or a change in pay structure, that all child support agreements are
presumably based upon the parties’ anticipated or current income and employment, and
that the mention of Father’s anticipated base salary was only to show that the parties did
not know “what his future base income might be as it was a new pay arrangement . . . .”
Appellant’s Reply Brief at 4-5.
In general, a dissolution court “retains jurisdiction to interpret the terms of its
decree and decide questions emanating from its decree pertaining to its enforcement.”
Bandini v. Bandini, 935 N.E.2d 253, 260 (Ind. Ct. App. 2010) (citing Fackler v. Powell,
839 N.E.2d 165, 169 (Ind. 2005)). “Settlement agreements become binding contracts
when incorporated into the dissolution decree and are interpreted according to the general
rules for contract construction.” Id. (citing Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind.
2008)). Unless the terms of a contract are ambiguous, courts will merely apply the terms,
giving them their plain and ordinary meaning, and will not construe the contract or look
at extrinsic evidence. Id. (citation omitted). Terms are ambiguous if a reasonable person
would find them subject to more than one interpretation, but are not ambiguous merely
because the parties disagree concerning their proper interpretation. Id. (citation omitted).
“Interpretation of a settlement agreement, as with any other contract, presents a question
of law and is reviewed de novo.” Id. (citing Bailey, 895 N.E.2d at 1217). One of the 11 purposes of child support is to provide a child with regular and uninterrupted support.
Hicks v. Smith, 919 N.E.2d 1169, 1171 (Ind. Ct. App. 2010), trans. denied. “[A]
noncustodial parent may not unilaterally reduce proportionately a support order in gross
for several children but must make payments of support in the manner, amount and at
times required by the support, at least until such order has been set aside.” Nill v. Martin,
686 N.E.2d 116, 117 (Ind. 1997) (citations omitted).
The Settlement Agreement, approved by the court and made a part of the Decree,
provides that Father would pay child support consisting of two components: (1) a weekly
base child support obligation of $92.34 under Paragraph 2.A., premised upon a base
weekly salary at the time of $400 per week; and (2) an additional weekly support
obligation. With respect to the latter, Paragraph 2.B. of the Settlement Agreement
provides that “the parties agree that [Father] shall pay to [Mother] [a] monthly sum equal
to twenty-seven (27%) percent[5] . . . of his gross monthly earnings in excess of his base
weekly salary of Four Hundred ($400.00) Dollars as and for additional support of the
parties’ minor children.” Appellant’s Appendix at 17. The parties do not dispute the
manner in which the additional weekly support obligation should have been calculated.
Rather, they disagree as to whether Father was required to pay this additional weekly
support obligation after his employment with TPC, his employer at the time of the
Decree, had ended or terminated.
The plain language of Paragraph 2.B. requires Father to pay additional weekly
child support in an amount equal to a fixed percentage of his weekly gross income.
Accordingly, in the event that Father’s gross income was to increase, his additional
5 As previously noted, Mother concedes the applicable percentage should have been 22.4%. 12 support obligation and thus total support obligation would increase. Similarly, if Father’s
gross income was to decrease, his additional and total child support obligation would
decrease. We note that the language of the clause requires Father to pay a weekly
amount of additional support equal to a percentage of his “gross monthly earnings” in
excess of $400 and does not expressly or implicitly limit the additional support to a
percentage of those earnings based on commissions or other types or forms or earnings.
Id. This observation, at a minimum, favors an interpretation of the Settlement Agreement
that Father’s total support obligation was intended to be based in some manner upon his
total income in whatever form or combination of forms the income is earned.
Moreover, although Father argues that the language of Paragraph 2.B. merely sets
forth the formula to be used to determine his support while employed for TPC, we cannot
agree. The clause does not expressly contain such a limitation. The provision does not
state that the additional child support component of his total support obligation would be
eliminated or reduced at a future date based upon a change in his employer or a change in
the form of his income. We conclude that the plain language of the Settlement
Agreement provides that Father’s child support obligation is a variable amount,
increasing or decreasing depending upon his total gross income. See Cochran v.
Rodenbarger, 736 N.E.2d 1279, 1281 (Ind. Ct. App. 2000) (noting that “[t]he plain
language of this clause requires Mother to pay child support in an amount equal to 16%
of her gross income,” that “[a]lthough Mother argues that the language in this clause
merely set the formula to determine her child support obligation when it arose initially,
we disagree,” that “[t]he clause contains no such limitation: it does not provide that
Mother will pay 16% of her gross wages from her first full-time job,” that “[r]ather, it 13 simply instructs Mother to pay 16% of her gross wages, whatever that amount may be,”
and that “the plain language of the settlement agreement provides that Mother’s child
support obligation is a variable amount, going up or down depending upon her income”).
This interpretation of Paragraph 2.B. of the Settlement Agreement is consistent with the
idea or presumption that Mother and Father intended for Father’s support obligation to
ensure continuing appropriate support for the children. See Schwartz v. Heeter, 994
N.E.2d 1102, 1106 (Ind. 2013) (interpreting a child support provision in a settlement
agreement which provided in part that the parties’ respective child support obligation
would be recalculated annually based upon the parties’ income as reported on their tax
returns and noting that “we presume that when parents agree to regularly review their
support obligations, it is for the broad purpose of ensuring appropriate support for their
children, and not merely to stipulate a particular formula for calculating that support”).
With respect to the language in Paragraph 2.B. that “the Parties expressly
acknowledge that [Father’s] employer has moved him from a salaried status to a base
salary plus commission pay plan,” Appellant’s Appendix at 17, we observe that the
language is an acknowledgment of the reason for the parties’ agreement to divide
Father’s total support obligation into two components, namely, that Father’s income may
be irregular due to his possibly fluctuating income and that the parties desired to take that
fact into account. The Indiana Supreme Court and the Indiana Child Support Guidelines
encourage parents to innovate in finding ways to account for irregular income and in
crafting solutions which promote settlement agreements. See Child Support Guideline
3.A.1. (defining “weekly gross income” to include salaries, wages, commissions, and
bonuses); Commentary 2.b. to Child Support Guideline 3.A. (noting that one method of 14 treating irregular income is to require the obligor to make payments of a certain ratio or
percentage of the obligor’s irregular income and stating that “[j]udges and practitioners
should be innovative in finding ways to include income that would have benefited the
family had it remained intact”); Schwartz, 994 N.E.2d at 1105-1106 (observing that
“[i]rregular income creates an unavoidable tension between the twin goals of a child
support determination: (1) giving children the support they need (2) based on
ascertainable, dependable income,” that “accounting for it has long challenged courts and
practitioners,” and that “[a]llowing the flexibility to craft innovative solutions promotes
settlement agreements, which Indiana law expressly encourages”) (citations and internal
quotation marks omitted). In addition, the parties’ acknowledgment of the form of
Father’s income at the time of the Settlement Agreement does not suggest that the parties
intended that his total support obligation be based on an income amount which did not
include his irregular income after his employment with TPC ended.
Further, the language in Paragraph 2.B. that “[t]he child support obligation of
[Father] as set forth in the preceding paragraph is premised solely upon [Father’s]
anticipated 2004 base salary,” Appellant’s Appendix at 17, is a reference to Paragraph
2.A. of the Settlement Agreement which set forth the component of Father’s support
obligation based on his base weekly salary. This sentence reiterates that the weekly base
child support obligation, set forth in Paragraph 2.A. and premised on a weekly gross
income of $400, is one of two components comprising Father’s total obligation and that
the other component, set forth under Paragraph 2.B. and premised on Father’s weekly
gross income in excess of $400, is also a part of Father’s total support obligation. The
statement does not suggest in any way that the additional support amount described in 15 Paragraph 2.B. was not intended to be a component of Father’s total support obligation at
the time of the Settlement Agreement or at a later time based on Father’s employer or
form of income. Finally, the language that Mother reserved the right to revisit the issue
of child support “without being subjected to the conditions for support modification as set
forth in the Child Support Guidelines,” Appellant’s Appendix at 17, does not suggest that
Father’s support obligation based on his weekly gross income in excess of $400 was not a
part of Father’s total support obligation. The clause merely provided that Mother could
seek a modification without first satisfying the conditions of the Support Guidelines. See
Child Support Guideline 4 (“The provisions of a child support order may be modified
only if there is a substantial and continuing change of circumstances.”); Commentary to
Child Support Guideline 4 (“Before a child support order may be modified in Indiana, it
is necessary for a party to demonstrate a substantial and continuing change in
circumstances that makes the present order unreasonable or that the amount of support
ordered at least twelve (12) months earlier differs from the Guideline amount presently
computed by more than twenty percent (20%) . . . .”).
We conclude that Father was required to pay the additional weekly support
obligation set forth in Paragraph 2.B. as part of his total support obligation after his
employment with TPC ended. While the child support order was subject to modification,
Father never petitioned the court to modify his support obligation. Accordingly, the trial
court erred in calculating Father’s total child support arrearage. While the total arrearage
should include the arrearage attributable to his weekly base support obligation (found by
16 the trial court to be $5,539.276 less a credit of $833 for funds that Father paid to satisfy
certain marital obligations), Father’s total arrearage should also include the arrearage
accrued by Father in failing to make payments under Paragraph 2.B. of the Settlement
Agreement. Mother presented evidence of Father’s gross income for the years 2004
through 2011 and a calculation of Father’s arrearage under Paragraph 2.B. which showed
that Father’s arrearage based upon his gross earnings in excess of his base salary was
$47,495. We reverse the trial court’s determination of Father’s arrearage and remand to
the trial court to make a determination and enter findings as to Father’s total support
arrearage which includes the arrearages attributable to his base support obligation and to
his additional support obligation, and to determine an additional amount Father shall pay
weekly toward his total arrearage.7
Finally, Mother does not challenge and we do not disturb the trial court’s
calculation of Father’s current weekly support obligation of $239. To the extent Mother
argues that the court abused its discretion in phasing in the current support obligation, we
note that the Commentary to Ind. Child Support Guideline 4 allows for consideration to
be given to phasing in an increase in support if it would result in “a drastic reduction in a
parent’s standard of living.” The trial court found that it was appropriate to phase in
Father’s modified child support obligation due to the fact that the amount Father would
now be paying was an increase of over fifty percent of what he had been paying.
6 As noted above, it appears this amount was computed in part based upon a weekly base support of $93.24 instead of $92.34 as set forth in the Settlement Agreement. 7 Because we remand for a determination of Father’s total arrearage based on the terms of the Settlement Agreement, we need not address any argument by Mother that the trial court’s order had the effect of impermissibly modifying the support order retroactively. See Cochran, 736 N.E.2d at 1281 n.1 (“Due to our resolution of this issue, we need not address Mother’s contention that the trial court’s order had the effect of impermissibly modifying the support order retroactively.”). 17 Pursuant to this opinion, Father also now has a significant arrearage to pay. In light of
these circumstances, we cannot say that the phase-in schedule set forth in the April 23,
2013 order was improper and we affirm that part of the trial court’s order. However, it is
unclear as to how much of the amounts ordered to be paid during the phase-in period
were to be attributed to Father’s arrearage. On remand, after determining the weekly
amount Father is to pay toward the arrearage, the court is to determine the amounts to be
paid during the phase-in period, and the portion of each such payment attributed to the
arrearage.
CONCLUSION
For the foregoing reasons, we reverse the trial court’s order denying Mother’s
motion to correct errors and the court’s April 23, 2013 order related to Father’s total
arrearage and the additional weekly amount he must pay toward his arrearage, affirm the
phase-in schedule of Father’s modified support payments, and remand for proceedings
consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
BARNES, J., concurs.
ROBB, J., dissents with separate opinion.
18 IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: ) ) ANNETTE M. HUSEMAN, f/k/a ) ANNETTE M. MANTIS, ) ) Appellant, ) ) vs. ) No. 45A04-1307-DR-351 ) ANGELO N. MANTIS, ) ) Appellee. )
ROBB, Judge, dissenting
The trial court in its order made factual findings, apparently on its own motion.
Thus, we should not set aside a specific finding unless it is clearly erroneous, that is,
unless there are no facts or inferences to be drawn therefrom which support it. Perkinson
v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). I believe the trial court’s finding
interpreting the provision of the parties’ Settlement Agreement regarding child support is
supported by the facts and by the inferences to be drawn from the agreement itself, and I
therefore respectfully dissent from the majority’s decision reversing the trial court’s order
regarding Father’s arrearage.
Paragraph 2.B. of the support provision begins, “the parties expressly
19 acknowledge that [Father’s] employer has moved him from a salaried status to a base
salary plus commission pay plan.” Appellant’s Appendix at 17. It also specifically
references his anticipated 2004 base salary and reserves to Mother the right to revisit
support without having to show changed circumstances or wait at least twelve months.
See Ind. Code § 31-16-8-1(b). At the hearing on the parties’ post-dissolution motions,
the child support issues were presented summarily by the parties’ attorneys. Father’s
attorney stated that at the time the Settlement Agreement was entered into in February
2004, both parties knew he was looking for new employment, and he did in fact find new
employment within three months. Mother’s attorney also acknowledged that the support
paragraphs of the Settlement Agreement were crafted “in anticipation that [Father’s]
employment would change and he would become gainfully employed . . . .” Transcript at
13. It is within this context that the trial court determined the “most reasonable
construction” of the support provision is that it was intended to apply only to Father’s
compensation from his then-current employment. I agree with the trial court.
The majority states that the plain language of Paragraph 2.B requires Father to pay
a weekly amount of additional child support and that amount is not expressly or
implicitly limited to a percentage of earnings based on commissions or other irregular
income. See slip op. at 13-14. I agree that the provision does not limit the additional
support to a percentage of a particular kind of income; but I do believe it limits the
additional support to a particular source of income—that is, income in excess of his base
weekly salary from his then-current job. The majority also states its interpretation of the
provision is consistent with the idea that the parties intended to “ensure continuing
appropriate support for the children.” Id. at 15. However, specifically including an 20 exception to the normal requirements for modification and allowing Mother to seek
revision of the support obligation when circumstances changed—as the parties apparently
anticipated was imminent—also serves that purpose under the trial court’s interpretation.
Moreover, although admirably attempting to deal with a then-uncertain financial
situation, the provision—which requires a mathematical formula to be applied monthly,
supporting documentation to be provided, and results in a fluctuating child support
amount—would be untenable as a long-term solution.
As to Mother’s contention that the trial court’s interpretation is an improper
retroactive modification of the support provision, I disagree. The trial court’s order does
not modify the provision, it simply applies it as the trial court found it was intended to be
applied. That the provision references Father’s particular employer and the particular
year limits its effectiveness to those particular circumstances and the onus was on Mother
to avail herself of the opportunity to revisit child support when those circumstances
changed. In short, I believe the trial court’s interpretation of Paragraph 2.B is supported
by the facts and is not clearly erroneous, and I would affirm the trial court’s order in its
entirety.