Marriage of Merrill v. Merrill

587 N.E.2d 188, 1992 Ind. App. LEXIS 262, 1992 WL 39505
CourtIndiana Court of Appeals
DecidedMarch 5, 1992
Docket71A03-9110-CV-327
StatusPublished
Cited by36 cases

This text of 587 N.E.2d 188 (Marriage of Merrill v. Merrill) 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
Marriage of Merrill v. Merrill, 587 N.E.2d 188, 1992 Ind. App. LEXIS 262, 1992 WL 39505 (Ind. Ct. App. 1992).

Opinion

STATON, Judge.

Mare O. Merrill (Father) appeals from a judgment modifying his weekly child support payment from $50 to $177 per week. He raises the following two issues for our review:

I. Whether the trial court erred by failing to deduct payment made toward principal on business debts from gross *189 profit from Father's closely held corporation in determining weekly available income for child support purposes.
II. Whether the trial court erred in including a portion of retained earnings of Father's closely held corporation as disposable income for child support purposes.

We affirm.

The marriage of Father and Joan M. Merrill (Mother) produced a child, Kristin Marie, aged nine at the time of this proceeding. They were divorced in 1986 and custody of Kristin was granted to Mother, while Father was ordered to pay weekly support in the sum of $50 per week. On January 21, 1991, Mother filed a petition to modify the support payment. A hearing was held before a magistrate, and upon the evidence presented, Father's support payment was increased to $177 per week. He appeals.

The magistrate entered findings pursuant to Indiana Code 88-4-7-8, which were approved by the Circuit Court judge. Since the trial court made specific findings of fact and conclusions of law, we are bound to review the same under the following standard: we first must determine whether the evidence supports the findings; then determine whether the findings support the judgment. Kaminszsky v. Kukuch (1990), Ind.App., 553 N.E.2d 868, 870, transfer denied. The judgment of the trial court will be affirmed if we conclude that the special findings support the judgment and are not clearly erroneous. Branchheau v. Weddle (1990), Ind.App., 555 N.E.2d 1315, 1317. A judgment is clearly erroneous where a review of the record leaves us with a firm conviction that a mistake has been made. Indiana Dept. of Correction v. Stagg (1990), Ind.App., 556 N.E.2d 1338, 1341, transfer denied.

I.

Principal Payments on Business Debts

Father is the sole stockholder of a pharmacy organized as a Subchapter S corporation. He takes issue with the following finding:

The Court finds that the husband voluntarily left a lucrative pharmacist position which paid $34,387.00 in 1984 to start his own business. While husband should be congratulated for his entrepreneurial skill, he should not be able to reap the benefits of entrepreneurial skill and withhold income or other resources from the Court in considering the amount of child support to be enjoyed by his offspring. A self-employed person such as the husband has discretion to defer current income by incurring debt, the interest on said debt being deductible for tax purposes. The principal, as it is paid back over years, increases the husband's net worth and by the time this child is of the age majority [sic], the husband would be the owner of valuable real estate debt free. If the husband's argument was allowed to prevail, a noncustodial parent could engage in self-employment, borrow money to the maximum amount allowed, and declare that a very large percentage of income is used to pay the interest and principal on the debt and therefore, very little income should be considered available for determining child support. Such is obviously not contemplated by the guidelines when considering the language of 1.C. 31-1-11.5-12.

Record, p. 42. Father argues that payments of principal on the debts incurred to purchase his pharmacy business were "ordinary and necessary expenses" which are properly deducted from the weekly gross income calculation under the child support guidelines.

The Preface of the Indiana Child Support Guidelines states that the guidelines are consistent with the provisions of Indiana Code 31-1-11.5-12. That statute outlines a number of considerations in the setting of child support payments, one of which is the financial resources of the noncustodial parent. 1 Ind. Child Support *190 Guideline 1. Evidence of a parent's net worth and assets are relevant subjects of inquiry in a proceeding to establish or modify child support. Green v. Green (1988), Ind.App., 447 N.E.2d 605, 609, transfer denied. Child Support Guideline 3 specifically addresses income from self-employment or operation of a business:

2. Weekly Gross Income from self-employment, operation of a business, rent, and royalties is defined as gross receipts minus ordinary and necessary expenses. Specifically excluded from ordinary and necessary expenses for purposes of these Guidelines are depre-clation, investment tax credits, or any other business expense determined by the Court to be inappropriate for determining weekly gross income for purposes of calculating child support. In general, these types of income and expenses from selfemployment or operation of a business should be carefully reviewed. In most cases, this amount will differ from a determination of business income for tax purposes.

(Emphasis added). This Guideline clearly vests discretion with the trial court to seru-tinize the self-employed parent's financial situation closely, and to exclude as a business expense any expenditure which the court in its discretion finds will personally benefit the parent. The Commentary gives further light to this provision:

Calculating weekly gross income for the self-employed or for those who receive rent and royalty income presents unique problems and calls for careful review of expenses. The principle involved is that actual expenses are exeluded and benefits that reduce living expenses (company cars, free lodging, reimbursed meals, ete.) should be included in whole or in part. While income tax returns may be helpful in arriving at weekly gross income for a self-employed person, the deductions allowed by the Guidelines may differ significantly from those allowed for tax purposes.

We have stated that the financial resources of both parents are relevant in child support modification determinations and should be included in the totality of circumstances to be considered in making an award. Hiland v. Hiland (1984), Ind.App., 467 N.E.2d 1253, 1255, transfer denied. In the past, this court has seen fit to consider financial resources which were tied up in real estate, investments, automobiles, and personal possessions, though such assets are not income per se. See, e.g., McCallister v. McCallister (1986), Ind.App., 488 N.E.2d 1147, 1152.

The evidence here supports the trial court's findings. At the time of the marital dissolution Father's pharmacy was a fledgling enterprise with a negative net worth due to the loans taken out by Father to purchase the business.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Peter Chapman v. Julia Chapman
563 P.3d 1155 (Alaska Supreme Court, 2025)
Marriage of Hein
California Court of Appeal, 2020
Lia Rain Jensen v. Todd Calvin Jensen
Michigan Court of Appeals, 2018
In re Marriage of Moorthy
2015 IL App (1st) 132077 (Appellate Court of Illinois, 2015)
In the Matter of Janice E. Maves and David L. Moore
166 N.H. 564 (Supreme Court of New Hampshire, 2014)
J.S. v. C.C.
912 N.E.2d 933 (Massachusetts Supreme Judicial Court, 2009)
Klinksiek v. Klinksiek
2005 NMCA 8 (New Mexico Court of Appeals, 2004)
Coffey v. Coffey
661 N.W.2d 327 (Nebraska Court of Appeals, 2003)
In Re the Marriage of Brand
44 P.3d 321 (Supreme Court of Kansas, 2002)
Carmichael v. Siegel
754 N.E.2d 619 (Indiana Court of Appeals, 2001)
Clark v. Clark
779 A.2d 42 (Supreme Court of Vermont, 2001)
Watson-Wojewski v. Wojewski
2000 SD 132 (South Dakota Supreme Court, 2000)
Snow v. Snow
24 S.W.3d 668 (Court of Appeals of Kentucky, 2000)
Bleth v. Bleth
2000 ND 52 (North Dakota Supreme Court, 2000)
Hubbard v. Hall
739 So. 2d 498 (Court of Civil Appeals of Alabama, 1999)
Cauble v. Cauble
515 S.E.2d 708 (Court of Appeals of North Carolina, 1999)
Serletic v. Noel
700 N.E.2d 1159 (Indiana Court of Appeals, 1998)
Doe v. Child Support Enforcement Agency
953 P.2d 209 (Hawaii Intermediate Court of Appeals, 1998)
In Re the Marriage of Pond
676 N.E.2d 401 (Indiana Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
587 N.E.2d 188, 1992 Ind. App. LEXIS 262, 1992 WL 39505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-merrill-v-merrill-indctapp-1992.