In the Matter of the Paternity of A.I., Sandrella Windham, a.k.a. Samantha Kelley v. Kenneth Ivy (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 15, 2016
• Docket: 49A04-1507-JP-773
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jun 15 2016, 6:14 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE Samantha Kelley Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of June 15, 2016 A.I., Court of Appeals Case No. 49A04-1507-JP-773 Sandrella Windham, a.k.a. Samantha Kelley, Appeal from the Marion Circuit Court Appellant-Respondent, The Honorable v. Sheryl Lynch, Judge The Honorable Tamara L. McMillian, Magistrate Kenneth Ivy, Trial Court Cause No. Appellee-Petitioner. 49C01-0608-JP-32116

Kirsch, Judge.

[1] Sandrella Windham, a.k.a. Samantha Kelley (“Mother”), filed a motion to

modify the child support obligation of Kenneth Ivy (“Father”) for the parties’

minor child. Mother appeals the trial court’s order modifying Father’s child

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 1 of 10 support obligation and raises several issues, of which we find the following to

be dispositive: Whether the trial court abused its discretion when it ordered

that Father was no longer required to pay child support.

[2] We affirm.

Facts and Procedural History [3] Mother and Father are the biological parents of one child (“Child”), born in

2003. In 2006, Father petitioned to establish paternity of Child, and in 2007,

the trial court issued a Judgment of Paternity and Support (“the Judgment”),

which established paternity in Father. The Judgment reflected a weekly child

support calculation of $99.00 per week, but the trial court deviated from that

amount by applying a credit to Father for social security benefits that Child

received from Father, resulting in a child support obligation of $33.00 per

week.1 Appellant’s App. at 10. Under the Judgment, Father also was responsible

for providing the medical and dental insurance on Child. In 2010, Mother left

the state of Indiana with Child, but returned in 2014. In September 2014,

Mother filed a Verified Petition for Modification of Child Support (“Petition”),2

and in February 2015, the trial court held a hearing on the matter. Both Mother

and Father appeared in person, but neither party was represented by counsel.

1 The Judgment is not included in the record before us, and we extrapolate the facts and amounts from the trial court’s order in this case, as well at the parties’ testimony. 2 The Petition is not included in the record before us.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 2 of 10 [4] At the hearing, Mother testified that she and Father both are military retirees

and that both of them receive Social Security disability payments and

Department of Veterans Affairs (“V.A.”) disability payments. She provided the

trial court with a January 2014 Social Security disability document, which was

admitted into evidence, and it reflected her monthly disability payment as

$895.00 per month. Resp’t’s Ex. A. Mother asserted that Father’s income “is

higher than mine,” noting that he receives monthly military retirement

payments. Tr. at 5. She estimated that her total monthly income was near

$4,000.00 and that Father’s was between $5,000.00 and $6,000.00. Id. at 5-6,

11. Mother testified that there were no childcare-related expenses, but that

Child, who was in fifth grade at the time of the hearing, had been diagnosed

with dyslexia and had recently started attending a learning institution that

provided a teaching style suited for dyslexic children. Tuition to attend the

school was $350.00 per month, and Mother testified that she and Father each

had been paying $175.00. As for parenting time, Mother stated that Father

generally spent three to four overnights with Child per month. Mother testified

that Father “will buy some clothing” for Child and that he gives Child gifts for

her birthdays and “does help with the extra-curricular things,” but he “is not

held to do those things.” Id. at 6. Mother acknowledged that, although Father

“does the extra and pays [] one fifty-three a month,” he was not under any legal

obligation to do so, and, she stated, “I want him [to have] a monthly obligation

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 3 of 10 that . . . whatever could happen, he still has to pay that set amount[.]” 3 Id. at 6-

7.

[5] Father also testified, initially advising the trial court that, some years prior, he

had filed a petition for contempt because Mother “disappeared and did not let

the courts know” and that he spent thousands of dollars “to find her,” which

took six months or so. Id. at 15. He stated that after he located Mother and

Child in Colorado, he spent $7,000.00 on flights, hotel, car rental, and meals

over the years in order to exercise parenting time with Child. Father disputed

the income figures that Mother presented for herself at the hearing, asserting

that her income was “much higher” than she was claiming. Id. at 9.

[6] As to his own income, Father testified as to the amounts he was receiving in

Social Security disability benefits, V.A. disability benefits, and military

retirement benefits. Father provided a summary of the figures to the court,

which was admitted into evidence. Pet’r’s Ex. 1. Father testified that he was

paying $153.00 in child support for Child, and that, in addition, Child received

$724.30 per month through Social Security as a result of Father’s disability.

Father testified that he pays $118.00 per month in health care for Child and

$60.00 per month for dental insurance. Father stated that he pays “all the co-

pays” for Child’s ophthalmology visits and glasses and asserted that Mother

3 From the record before us, it appears that Mother did not provide the trial court with a proposed child support worksheet. As we have neither the Petition seeking modification of child support, nor a proposed support worksheet, we have only Mother’s testimony as evidence of her requested amount of child support.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 4 of 10 “doesn’t pay anything.” Tr. at 19-20. He stated that he was on a payment plan

for what was not covered by insurance for Child’s $7,000.00 orthodontic bills.

Id. In addition to paying half of Child’s $350.00 per month tuition, he added

that “I do all her books for school. I do all her uniforms.” Id. at 20. Father

told the court that after Mother and Child returned to Indiana in 2014, he

generally had Child three to four overnights per week, contrary to Mother’s

testimony. Id. Father noted to the court that he had a child support obligation

for a prior-born child and that, in addition, $735.29 was deducted from his

military retirement and paid to a prior wife as “alimony.” Id. at 24.

[7] The trial court took the matter under advisement, and in April 2015, it issued

an order (“Order”), finding in part, as follows:

23. Court finds that Father had a substantial and continuous change of circumstances of prior weekly support order of $33.00; the prior order was issued more than twelve (12) months prior; and Father’s current child support calculation is more than a 20% difference from the prior order.

24. Court finds that Father should not pay any weekly child support for Child. Court deviates from the Child Support Obligation Worksheet calculation that Father’s weekly child support is now two dollars ($2.00) per week due to it being in the child’s best interest and Father’s voluntary payments toward Child’s educational needs.

Appellant’s App. at 11. Mother now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 5 of 10 Discussion and Decision [8] Initially, we observe that Father did not file an appellee’s brief. We will not

undertake the burden of developing arguments for the appellee. In re Paternity of

E.C., 896 N.E.2d 923, 924 (Ind. Ct. App. 2008). Applying a less stringent

standard of review, we may reverse the trial court if the appellant establishes

prima facie error. Id. Prima facie error is defined as at first sight, on first

appearance, or on the face of it. Id.

[9] A trial court’s calculation of child support is presumptively valid. Bogner v.

Bogner, 29 N.E.3d 733, 738 (Ind. 2015). On appeal, we will not disturb a trial

court’s order modifying child support unless the trial court abused its discretion.

In re E.C., 896 N.E.2d at 924; Davis v. Knafel, 837 N.E.2d 585, 587 (Ind. Ct.

App. 2005), trans. denied. We consider the evidence most favorable to the

judgment and the reasonable inferences to be drawn therefrom, and we do not

reweigh evidence or reassess the credibility of witnesses. In re E.C., 896 N.E.2d

at 924. It is not enough that the evidence might support some other conclusion;

rather, it must positively require the conclusion contended for by appellant

before there is a basis for reversal. Davis, 837 N.E.2d at 587.

[10] Pursuant to Indiana Code section 31-16-8-1,4 child support obligations may be

modified only:

4 See Ind. Code 31-14-11-2.3 (“A child support order issued under [the paternity support] chapter is subject to the provisions in IC 31-16-6 through IC 31-16-13.”).

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 6 of 10 (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 (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.

[11] In the present case, the trial court’s Order included a child support worksheet

that calculated Father’s weekly gross income as $1,218.58 ($4,874.32 per

month) and Mother’s weekly gross income as $929.84 ($3,719.36 per month).

The Order determined that Father’s child support obligation pursuant to the

Guidelines was $2.00 per week, which represented more than a 20% difference

from the prior $33.00 per week support order that was issued in 2007. The

court further determined that a deviation was justified, and it ordered that

Father was not required to pay any weekly child support for Child. Mother

maintains that this decision was an abuse of discretion, but we disagree.

[12] At the hearing on Mother’s Petition, she testified as to her estimation of each

party’s income, but presented only one document, dated September 2014, to

show her Social Security disability payments, at least at that time. Although

she acknowledged that she also received V.A. disability benefits and estimated

her total monthly income to be approximately $3,000.00, she presented no

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 7 of 10 other evidence of her income, and she did not offer a proposed child support

worksheet. Father testified and presented documentation showing the amounts

of his V.A. disability benefits, his Social Security disability benefits, and his

military retirement pay. He also testified that he pays $153.00 in child support

for Child, and he noted that Child receives an additional $724.30 from Social

Security relative to Father’s disability, a sum that Father asserts Mother did not

include in her child support allegations. Father testified to the specific amounts

that he pays for Child’s medical and dental insurance, as well as another child

support obligation for a prior-born child and for a prior alimony or maintenance

obligation. He presented a summary of what he believed his income to be,

reduced by payments and obligations, as well as another document

summarizing what he believed Mother’s income to be. Resp’t’s Exs. 1, 2.

[13] Mother argues on appeal that the trial court, in calculating child support,

should not have given Father a credit for exercising three overnights with the

child per week (or 156 per year). Appellant’s Br. at 2. Her argument in this

regard, however, is merely a request for us to reweigh the evidence. That is, at

the hearing, Father testified that, since the time that Mother and Child returned

to Indianapolis in 2014, he had been exercising three to four overnights with

Child per week, whereas Mother testified that he exercised four to five

overnights per month. As we have often recognized, “Trial courts must

exercise judgment, particularly as to credibility of witnesses, and we defer to

that judgment because the trial court views the evidence firsthand and we

review a cold documentary record.” MacLafferty v. MacLafferty, 829 N.E.2d 938,

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 8 of 10 941 (Ind. 2005). Given the record before us, it was not an abuse of discretion

for the trial court to credit Father with three overnights of parenting time per

week.

[14] The remainder of Mother’s arguments on appeal consist primarily of general

allegations that the trial court’s decision was “unethical” and “unprofessional,”

and that it included “false” statements and that it was in “blatant disregard of

the law.” Appellant’s Br. at 2, 5-6. She does not challenge the income figures

used by the trial court or contend that its calculations were incorrect. She does

not challenge the existence of Father’s other child support obligation or his

maintenance payment to a prior spouse. In sum, she does not specifically

explain or allege in what way the trial court’s decision was an abuse of

discretion. Accordingly, we find that Mother has failed to meet her burden to

establish that the trial court’s decision to modify Father’s child support

obligation was an abuse of discretion.

[15] Affirmed.5

5 Mother also raises the issue on appeal that “the trial court committed reversible error and abused its discretion . . . [by] not allowing [Mother] to take her minor child out of the court’s jurisdiction ‘without a court order.’” Appellant’s Br. at 1. However, the only pending motion before the trial court was Mother’s Petition seeking to modify child support, and the trial court advised the parties on several occasions during the hearing that matters concerning Mother’s past relocations or desire to do so in the future were not relevant to the pending motion to modify child support, and such matters would not be heard or decided. Tr. at 30, 32-33, 35-36. Although the trial court in its Order reminded both parties of their continuing obligation to report any change of residence to the court, it did not render any decision with regard to any relocation request of either parent. Appellant’s App. at 12. Accordingly, we do not address Mother’s claim that “the trial court committed reversible error and abused its discretion . . . [by] not allowing [Mother] to take her minor child out of the court’s jurisdiction[.]” Appellant’s Br. at 1.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 9 of 10 [16] Riley, J., and Pyle, J., concur.

Mother also asserts as an issue that “the trial court committed reversible error by not permitting the appellants [sic] material witnesses to enter court and provide exculpatory testimony.” Id. However, neither Mother’s Brief nor the Transcript refer to any such material witnesses who were offered but excluded. Furthermore, Mother’s only argument on the issue appears to be: “The Magistrate made a false statement when she stated the hearing was only for the modification of child support. This prevented the appellant from providing exculpatory testimony.” Id. at 4. Mother has thus waived the issue for failure to make a cogent argument. Ind. Appellate Rule 46(a)(8).

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-JP-773 | June 15, 2016 Page 10 of 10