In the Matter of the Paternity of H.J., Melissa R. Jallow v. William R. Fat-Anthony (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 30, 2015
• Docket: 49A02-1412-JP-825
• Status: Published

Opinion

MEMORANDUM DECISION Jun 30 2015, 8:49 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited 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 ATTORNEYS FOR APPELLEE Chad D. Wuertz Ryan H. Cassman Wuertz Law Office, LLC Cathy M. Brownson Indianapolis, Indiana Coots, Henke & Wheeler, P.C. Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of June 30, 2015 H.J., Court of Appeals Case No. 49A02-1412-JP-825 Melissa R. Jallow, Appeal from the Appellant-Petitioner, Marion Superior Court The Honorable Michael D. Keele, v. Judge Cause No. 49D07-0712-JP-55541 William R. Fat-Anthony, Appellee-Respondent.

Kirsch, Judge.

[1] Melissa R. Jallow (“Mother”) appeals the trial court’s order modifying the child

support obligation of William R. Fat-Anthony (“Father”) in this paternity

action. Mother raises several issues, which we consolidate and restate as:

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 1 of 12 whether the trial court abused its discretion in modifying Father’s child support

obligation.

[2] We affirm.

Facts and Procedural History [3] Mother and Father were never married, but share a child together, H.J.

(“Child”), born on November 2, 2007. Father’s paternity was established on

July 8, 2008, but no child support was ordered at that time. The case was re-

docketed on February 8, 2011 in order to determine child support. On August

24, 2011, the trial court established Father’s child support obligation to be

$283.00 per week and an additional $67.00 per week toward the arrearage,

which was determined to be $6,424.00.

[4] At an August 9, 2013 hearing, the trial court found Father in contempt for

failing to meet his child support obligation and ordered Father to pay Mother’s

attorney fees as of that date. Father made a few support payments following

this hearing, but still failed to meet his obligation. At a hearing held on

December 6, 2013, the trial court again found Father to be in contempt,

calculated a support arrearage, and issued a bench warrant for Father. On

January 27, 2014, the trial court ordered Father to serve thirty days in the

Marion County Jail or pay a purge bond of $5,000.00, which Father paid. The

trial court had previously entered a judgment against Father in the amount of

$8,785.89 for Mother’s attorney fees, and Mother’s counsel as judgment

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 2 of 12 creditor filed a motion for proceedings supplemental and levy for personal

property.

[5] On March 5, 2014, Father filed a motion for a change of judge and a petition

for modification of child support. On March 10, 2014, Mother filed a motion

for prepayment of her attorney fees. On March 24, 2014, a special judge was

appointed for the case, and he ordered the parties to attend mediation, to which

Mother objected; the order was rescinded. On May 2, 2014, Mother’s counsel

filed a renewed motion for proceedings supplemental and levy for personal

property, and on May 15, 2014, Mother filed a renewed motion for prepayment

of attorney fees. The pending motions were set for hearing on June 26, 2014,

but the hearing was rescheduled several times until it was finally set for

September 5, 2014 for the determination of all issues except Father’s petition for

modification of child support.

[6] Because Father lives in Texas, on August 21, 2014, he filed a motion to appear

telephonically for the September 5 hearing, or in the alternative, to have the

modification of child support motion heard on the same date. The trial court

denied Father’s request to appear telephonically, but granted Father’s motion to

consolidate the child support matter with the other motions at the hearing.

Mother filed a motion to reconsider this decision, but the trial court denied her

motion.

[7] At the September 5 hearing, the trial court informed the parties what issues

were pending, including the Mother’s counsel’s motion for proceedings

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 3 of 12 supplemental, Mother’s request for prepayment of attorney fees, and Father’s

petition to modify child support. The trial court asked Mother’s counsel if there

was anything additional counsel wanted to state regarding Mother’s motions.

Mother’s counsel declined and stated that Mother would rely on her motion,

but then went on to discuss the pending proceedings supplemental issue.

[8] During the hearing, Father testified that he was a pharmacist, who holds a

doctorate of pharmacy degree and has worked at Health Plus Pharmacy in

Mission, Texas since 2013, and that he earns $518.00 per week with no other

sources of income. Father filed a financial declaration, paystubs, and a

proposed child support obligation worksheet with the trial court. Father

testified that he and his wife had previously owned a business known as Valley

Scrubs and Medical Accessory, which was a part owner of Medical Mart and

DME, which was doing business as Health Plus Pharmacy, Father’s current

employer. However, Father stated that the business, Valley Scrubs and Medical

Accessory no longer existed, which “killed [his] ownership in Medical Mart

and DME.” Tr. at 45. He also testified that his wife works, he is in huge debt,

and that he has additional children and support obligations. Father additionally

stated that he and his wife discussed his prior failed business, and that by

maintaining his current employment, he may “get something out of it” in the

future. Id. at 63.

[9] Mother testified that she was employed as a registered nurse, earning $700.00

per week, and filed a financial declaration reflecting the same. Mother also

testified that she was a full-time student, and her hours had recently been cut,

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 4 of 12 which both resulted in her earning less income than what she previously had

averaged. Mother was going back to school to become an advanced nurse

practitioner and hoped to improve her income after she graduated in December

2014 She stated she had voluntarily decided to go back to school to better her

financial circumstances.

[10] The trial court issued an order granting Father’s petition to modify child

support and calculating Father’s arrearage and the payments received. The trial

court modified Father’s support obligation to $66.00 per week and found his

remaining arrearage to be $1,880.46. The trial court did not impute any income

to either party and, while identifying Father’s income as far lower than would

be expected given his profession, the court found his current earnings as

indicated on his financial declaration and tax return to be credible. The trial

court noted that Father testified about his hopes that his current employment

will pay off in the future and that Mother also chose to decrease her income in

order to attend school and hopefully earn more in the future. It also discussed

that both parties were earning less than they were at the time of the original

support order. The trial court did not award Mother attorney fees.

[11] Mother filed a motion to correct error on October 14, 2014. In her motion, she

argued that the trial court erred when it failed to rule on her motion for

prepayment of attorney fees and when it scheduled Father’s petition to modify

child support at the same hearing as her request for prepayment of attorney

fees. The trial court denied the motion to correct error. Mother now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 5 of 12 Discussion and Decision [12] A trial court’s decision on a motion to correct error comes to us cloaked with a

presumption of correctness, and the appellant has the burden of showing an

abuse of discretion. Faulkinbury v. Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct.

App. 2015) (citing Cox v. Matthews, 901 N.E.2d 14, 21 (Ind. Ct. App. 2009),

trans. dismissed). An abuse of discretion will be found when the trial court’s

action is against the logic and effect of the facts and circumstances before it and

the inferences that may be drawn therefrom. Id.

[13] Initially, Mother argues that the trial court abused its discretion when it

continued the hearing on her motion for prepayment of attorney fees and

consolidated the hearing on her motion with the hearing on Father’s motion to

modify child support. Mother contends that this was an abuse of discretion

because the trial court’s actions were in violation of certain local rules for

Marion County civil courts. She claims that, under the local rules, she should

have been allowed fifteen days to respond to Father’s motion to consolidate the

hearings, and because she was not given that opportunity to respond, the trial

court violated its local rules.

[14] Mother raises this argument regarding the violation of local rules for the first

time on appeal. After the trial court issued its order consolidating Father’s

motion for hearing at the same hearing as Mother’s pending motions, Mother

filed a motion to reconsider. However, she did not cite to the local rule or raise

its applicability in her motion. Additionally, on the day of the hearing, when

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 6 of 12 given an opportunity argue her motion, she did not raise the local rule’s

applicability. Further, Mother filed a motion to correct error after the trial

court’s ruling and, again, did not raise the local rule in her argument. We,

therefore, find that Mother’s argument is waived because she failed to raise it at

trial and only raises it for the first time before this court. See Stainbrook v. Low,

842 N.E.2d 386, 396 (Ind. Ct. App. 2006) (concluding that when an appellant

raises an issue for the first time on appeal, the issue is waived for purposes of

appellate review), trans. denied.

[15] Mother also asserts that the trial court abused its discretion when it failed to

rule or to schedule a meaningful hearing on her motion for prepayment of

attorney fees. Although Mother contends that the trial court did not conduct a

meaningful hearing on her motion, the record shows that her motion was to be

heard at the September 5, 2014 hearing along with Mother’s motion for

proceedings supplemental and Father’s petition to modify child support. At the

start of the hearing on September 5, the trial court inquired of Mother’s attorney

as to whether Mother had any argument to add to her motions. Tr. at 5.

Mother’s counsel declined and indicated that Mother would rely on her filed

motions and then commenced to discuss the proceedings supplemental issues.

Id. at 5-7. Therefore, during the September 5, hearing, Mother had an

opportunity to argue her motion, but failed to do so.

[16] Mother also argues that the trial court abused its discretion in not ruling on her

motion for prepayment of attorney fees. Although our review of the record

does not reveal that the trial court ever issued an order denying Mother’s

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 7 of 12 motion, we find the issue moot as the case has now concluded. See Dempsey v.

Dep’t of Metro. Dev. of City of Indianapolis, 953 N.E.2d 1132, 1136 (Ind. Ct. App.

2011) (“[W]e have determined that an issue is moot when the principal

questions in issue have ceased to be matters of real controversy between the

parties.”). Further, we do not find Mother was prejudiced by not being allowed

to conduct discovery as she asserts, because the failure to rule on her motion

did not stop her from conducting discovery. She could have still sought

discovery from Father and later request that Father be responsible for her

accrued attorney fees. We do not find any abuse of discretion by the trial court.

[17] Mother appeals the modification of Father’s child support obligation following

the denial of a motion to correct error. We review the denial of a motion to

correct error for an abuse of discretion. Faulkinbury, 28 N.E.3d at 1122. In

reviewing the trial court’s decision regarding the modification of child support,

we reverse only for an abuse of discretion. Holtzleiter v. Holtzleiter, 944 N.E.2d

502, 505 (Ind. Ct. App. 2011). 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.

[18] Indiana Code section 31-16-8-1 provides in pertinent part that child support

may be modified only:

(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) upon a showing that:

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 8 of 12 (A) a party has been ordered to pay an amount in child support that differs by more than twenty percent 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 months before the petition requesting modification was filed. Ind. Code § 31-16-8-1(b). Appellate courts give considerable deference to the

findings of the trial court in family law matters, including findings of “changed

circumstances” within the meaning of Indiana Code section 31-16-8-1.

MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). “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.” Id. at 941. Therefore, to the extent

credibility or inferences are drawn, we give the trial court’s determinations

substantial weight. Id.

[19] Mother argues that the trial court abused its discretion when it modified

Father’s child support obligation. She contends that, because Father has a

doctorate of pharmacy degree, he is voluntarily underemployed and is working

for a wage far less than he is capable of earning while helping to grow a

business in which he owns no interest. Mother asserts that the trial court

should have imputed potential income to him when calculating his child

support obligation.

[20] The trial court enjoys wide discretion in imputing income to ensure that the

child support obligor does not evade his or her support obligation. Sexton v.

Sedlak, 946 N.E.2d 1177, 1188 (Ind. Ct. App. 2011) (citing Apter v. Ross, 781

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 9 of 12 N.E.2d 744, 761 (Ind. Ct. App. 2003), trans. denied), trans. denied. Regarding

potential income, the Indiana Child Support Guidelines provide in pertinent

part:

If a court finds a parent is voluntarily unemployed or underemployed without just cause, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. Ind. Child Support Guideline 3(A)(3).

[21] In this case, the evidence presented at the hearing showed that Father had been

employed as a pharmacist at Health Plus Pharmacy in Mission, Texas since

2013 and that he earned $518.00 per week and had no other sources of income.

Father filed his financial declaration, paystubs, and proposed child support

obligation worksheet, which all reflected this income. The trial court heard

evidence regarding Father’s past business interests, and Father testified that he

no longer had an interest in the business. Father testified that his wife worked,

that he had substantial debt, and that he had additional children and support

obligations. Father also told the court that he and his wife discussed his prior

failed businesses and concluded that, by staying with his current employment,

he may “get something out of it” in the future. Id. at 63.

[22] Mother testified at the hearing that she was employed as a registered nurse and

earned $700.00 per week and filed a financial declaration, reflecting the same.

She also stated she was a full time student and studying to become an advance

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 10 of 12 nurse practitioner. Because of her student status, Mother was making less at

the time of the hearing than she had averaged in the past, but she hope that,

after graduating in December 2014, she would improve her income. She further

testified that she had voluntarily gone back to work to better her financial

circumstances.

[23] In its order modifying child support, the trial court specifically stated that

Father’s income was “far lower than would be expected given his chosen

occupation,” but found his current income credible based on his financial

declaration and his tax return. Appellant’s App. at 283. The trial court further

referenced Father’s testimony that he was maintaining his current employment

because he hoped it would pay off in the future, and that Mother had also

chosen to lower her income to attend school with the hope of earning more

income. Id. Additionally, the trial court noted the testimony of both parties

that they were earning less than at the time of the original support order. Id.

The evidence presented supported the trial court’s determination. Mother’s

arguments are merely requests for this court to reweigh the evidence, which we

cannot do. MacLafferty, 829 N.E.2d at 941. The trial court had the opportunity

to hear the evidence presented at the hearing and to observe the witnesses and

make a credibility determination based on its observations; we defer to that

judgment because the trial court viewed the evidence firsthand and we only

review a cold documentary record. Id. We, therefore, conclude that the trial

court did not abuse its discretion in not imputing income to Father and in

modifying Father’s child support obligation.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 11 of 12 [24] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015 Page 12 of 12