M.B. v. A.V.

• Court: Indiana Court of Appeals
• Decided: February 6, 2014
• Docket: 41A04-1305-JP-257
• Status: Unpublished

Opinion

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 Feb 06 2014, 9:01 am judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEY FOR APPELLEE:

M.B. STEVEN F. FILLENWARTH Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

M.B., ) ) Appellant, ) ) vs. ) No. 41A04-1305-JP-257 ) A.V., ) ) Appellee. )

APPEAL FROM THE JOHNSON SUPERIOR COURT The Honorable Kevin M. Barton, Judge Cause No. 41D01-9610-JP-3

February 6, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

M.B. (“Mother”) appeals the trial court’s modification of child support owed by

A.V. (“Father”). We affirm.

Issues

Mother raises four issues, which we consolidate and restate as:

I. whether the trial court properly modified the weekly child support owed by Father;

II. whether the trial court properly awarded the dependent tax exemption to Father for 2012 and 2013; and

III. whether the trial court properly refused to order Father to reimburse Mother for the cost of summer camps.

Facts

Mother and Father have one child, C.V., who was born in December 1995.

Paternity was established in 1997, and Mother was awarded sole legal and physical

custody. At that time, Father had a weekly gross income of $3,187.00. Mother had a

weekly gross income of $565.00. Father was ordered to pay child support of $346.00 per

week. The trial court also ordered that Father’s child support obligation be $311.00 per

week beginning January 9, 1998. Mother was awarded the ability to claim C.V. as a

dependent for tax purposes. The trial court ordered Father to pay 85% of uninsured

medical expenses in excess of $1,008.00. In 2001, C.V. was diagnosed with juvenile

diabetes, and she requires significant medical care.

In March 2011, Father filed a petition for modification of his child support in part

because his income had substantially declined. In August 2011, Mother also requested a

2 modification for child support to include secondary school educational expenses, health

insurance, transportation expenses, and a cell phone for C.V. A hearing was held on

January 10, 2013.

Evidence was presented that Father has an interest in five entities that own or

manage pizza restaurants. Father’s businesses experienced a significant downturn in

2011. Father’s most profitable restaurant, which was located in the City Market in

downtown Indianapolis, was closed in April 2011. He has filed a lawsuit against the City

of Indianapolis as a result of the closing, and that litigation is pending. Another of the

restaurants at the Adrian Mall closed in April 2012. Father eventually went to work for

his brother at a restaurant in Franklin. In 2011, Father’s income was $20,018.00, and his

adjusted gross income was $7,597.00. His gross income was $252.00 a week in 2011. In

2012, Father’s income was $47,586.00, or $915.00 per week.

The trial court entered findings of fact and conclusions thereon. The trial court

found that Father had “suffered a substantial reduction in income since 1997.” App. p.

28. After adjustments for excessive depreciation and unemployment benefits, the trial

court concluded that Father’s weekly gross income for 2011 was $357.00 and that his

weekly gross income for 2012 was $1,200.00. The trial court modified Father’s child

support obligation to $57.00 per week for March 28, 2011, through December 31, 2011,

and $166.00 per week beginning January 1, 2012. Father also requested a finding that he

had paid excess child support, but the trial court noted that no evidence regarding the

payment of child support between January 2, 2001, and March 28, 2011, was presented.

Consequently, the trial court was unable to determine whether Father overpaid child

3 support. The trial court also ordered Father to pay 46% of C.V.’s tuition for her private

high school and to reimburse Mother for her prior payments of the tuition. The trial court

denied Mother’s request for Father to contribute to transportation and cell phone

expenses. The trial court ordered Father to pay $19,326.20 in uninsured medical

expenses. As for the tax exemption, the trial court ordered that Father was entitled to the

tax exemption for 2012, 2013, and 2014.

Mother and Father each filed motions to correct error. The trial court then entered

an order partially granting the motions. The trial court ordered that Mother was entitled

to the tax exemption for 2014. The trial court also concluded that the summer diabetes

camps that C.V. attended were not medical expenses and removed those costs from the

list of uninsured medical expenses. The trial court then ordered Father to pay $15,628.70

in uninsured medical expenses. Mother now appeals.

Analysis

Mother appeals the trial court’s calculation of child support. “A trial court’s

calculation of child support is presumptively valid.” Young v. Young, 891 N.E.2d 1045,

1047 (Ind. 2008). A trial court’s decision regarding child support will be upheld unless

the trial court has abused its discretion. Sexton v. Sedlak, 946 N.E.2d 1177, 1183 (Ind.

Ct. App. 2011), trans. denied. A trial court abuses its discretion when its decision is

clearly against the logic and the effect of the facts and circumstances before the court or

if the court has misinterpreted the law. Id. Additionally, our standard of review is

governed by the trial court’s decision in this case to enter findings of fact and conclusions

thereon. Id. In such instances, we “shall not set aside the findings or judgment unless

4 clearly erroneous, and due regard shall be given to the opportunity of the trial court to

judge the credibility of witnesses.” Id. (quoting Ind. Trial Rule 52(A)). It appears that

the trial court issued the findings and conclusions sua sponte, and where the trial court

enters findings and conclusions sua sponte, the specific findings control only as to the

issues they cover. Id. A general judgment standard applies to any issue upon which the

trial court has not entered findings, and we may affirm a general judgment on any theory

supported by the evidence adduced at trial. Id.

I. Weekly Child Support

Mother argues that the trial court erred by modifying Father’s child support to

$57.00 per week for March 28, 2011, to December 31, 2011, and to $166.00 per week

effective January 1, 2012. At the time the petitions were filed and the trial court issued

its orders, the modification of a support order in the context of a paternity action was

governed by Indiana Code Section 31-14-11-8, which provided:

A support order may be modified or revoked upon a showing:

(1) of a substantial change in circumstances that makes the terms unreasonable; or

(2) that:

(A) a person 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 support order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

5 This statute was later repealed by P.L. 207-2013, §§ 24-40, effective May 9, 2013.1

Mother’s argument centers on the trial court’s calculation of Father’s weekly gross

income. Mother argues that, despite the decreases in Father’s income in 2011 and 2012,

Father still had substantial assets. Mother points out that, in 2011, Father sold

$50,937.00 of assets “presumably to support his own obligations,” that Father’s house

does not have a mortgage, and that Father contributed $233,000.00 to his failed

restaurant. Appellant’s Br. p. 6.

The Indiana Child Support Guidelines define “weekly gross income” as:

1 Currently, the modification of a child support order in the context of paternity is governed by Indiana Code Section 31-14-11-2.3, which provides: “A child support order issued under this chapter is subject to the provisions in IC 31-16-6 through IC 31-16-13.” Indiana Code Section 31-16-8-1 provides:

(a) Provisions of an order with respect to child support or an order for maintenance (ordered under IC 31-16-7-1 or IC 31-1-11.5- 9(c) before their repeal) may be modified or revoked.

(b) Except as provided in section 2 of this chapter, modification may be made only:

(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.

(c) Modification under this section is subject to IC 31-25-4-17(a)(6).

6 actual Weekly Gross Income of the parent if employed to full capacity, potential income if unemployed or underemployed, and imputed income based upon “in-kind” benefits. Weekly Gross Income of each parent includes income from any source, except as excluded below, and includes, but is not limited to, income from salaries, wages, commissions, bonuses, overtime, partnership distributions, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workmen’s compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, inheritance, prizes, and alimony or maintenance received from other marriages.

Ind. Child Support Guideline 3(A). With respect to Father’s income in 2011 and 2012,

the trial court found:

11. Father did not directly explain how he was able to be current on his financial obligations notwithstanding his limited income. Mr. McClary, an accountant for Father and the corporations in which Father owns an interest, testified that he has observed that his clients in the accounting practice are using the proceeds of liquidated assets to pay for current living expenses as a result of the current economic recession so as to avoid a loss of living standard, however, he offered no personal knowledge of Father’s situation. Father’s 2011 federal income tax return showed that Father reported $50,937.00 from the sale of assets.

*****

13. Mr. McCleary [sic] testified the [sic] one of the corporations in which Father owns an interest, Enzo 14, sustained a significant loss in 2011 and that there were “substantial” capital contributions to Enzo 14 to fund the losses.

14. Mother notes that Mr. McClary’s computations are based upon the bookkeeping entries made by an employee of the corporations in which Father owns an interest, who is related to Father. However, no evidence was presented that would show the figures to

7 be incorrect. Mr. McClary testified that he had found no reason not to trust the figures. Mother also notes that a sizeable portion of the revenue in the restaurant business comes from cash sales, which raises the possibility of under reporting income. However, no evidence was presented that income had been under reported.

15. From the evidence presented, the Court concludes that Father has suffered a substantial reduction in income since 1997.

App. pp. 28-29. The trial court then increased Father’s reported income by excluding

fifty percent of the depreciation that had been claimed on his tax returns. Ultimately, the

trial court concluded that Father’s weekly gross income for 2011 was $357.00 and that

Father’s weekly gross income for 2012 was $1,200.00. Mother disputed this finding in

her motion to correct error, and the trial court again addressed the issue. The trial court

did not find “that evidence was submitted to the Court at hearing of the value of

[Father’s] financial resources upon which the Court could base an order.” Id. at 38.

Although Mother claims that Father still had substantial assets despite his

decreased income, Mother presented no evidence to support these claims. Innuendo is

simply not enough for this court to say that the trial court’s findings were clearly

erroneous. Further, by the parties’ agreement, Father did not testify at the hearing. His

attorney merely gave a summary of Father’s circumstances. Mother agreed to this

procedure and, consequently, was unable to cross-examine Father regarding his assets.

Moreover, Mother did not submit a proposed child support order worksheet. 2 Under

2 Mother also argues that the modification “immediately created an overpayment of child support owed to Father by Mother of approximately $15,169.00.” Appellant’s Br. p. 10. However, the trial court 8 these circumstances, Mother has failed to demonstrate that the trial court’s findings and

conclusions regarding Father’s weekly gross income for 2011 and 2012 are clearly

erroneous.

II. Tax Exemption

Next, Mother argues that the trial court erred by awarding the tax exemption to

Father for 2012 and 2013. The Indiana Child Support Guidelines do “not take into

consideration the awarding of the income tax exemption. Instead, it is recommended that

each case be reviewed on an individual basis and that a decision be made in the context

of each case.” Child Supp. G. 9. “The noncustodial parent must demonstrate the tax

consequences to each parent as a result of releasing the exemption and how the release

would benefit the child(ren).” Id. In determining when to order a release of exemptions,

the Guideline recommends that, at minimum, the following factors be considered:

(1) the value of the exemption at the marginal tax rate of each parent;

(2) the income of each parent;

(3) the age of the child(ren) and how long the exemption will be available;

(4) the percentage of the cost of supporting the child(ren) borne by each parent;

(5) the financial aid benefit for post-secondary education for the child(ren); and

specifically noted that no evidence regarding the payment of child support between January 2, 2001, and March 28, 2011, was presented. Consequently, the trial court did not find that Father overpaid child support. 9 (6) the financial burden assumed by each parent under the property settlement in the case.

Id.; see also Ind. Code § 31-16-6-1.5.

Here, the trial court noted that Mother had received the tax exemption from 1997

through 2011, “notwithstanding Father’s substantially higher income as determined from

the 1997 Findings.” App. p. 33. Consequently, the trial court awarded the tax exemption

to Father for 2012, 2013, and 2014. However, upon reconsideration after the parties filed

motions to correct error, the trial court found:

Upon reassessment of the provisions of Indiana Code 31-16- [6]-1.5, the Court determines that it gave undue weight to the past application under the 1997 Order and insufficient consideration to other factors identified under Indiana Code 31-16-[6]-1.5. Consequently, the Court does find that the prospective award of the tax exemption should be divided more closely in accordance with the current income as opposed to the past income.

Id. at 39. The trial court then gave Mother the tax exemption for 2014.

According to Mother, the trial court erred by awarding Father the tax exemption

for 2012 and 2013. Mother contends that she should have been awarded the exemptions

because Father has little contact with C.V. and Mother has previously paid tuition and

uninsured health care expenses without help from Father. Although Mother asserts that

the factors weigh “heavily” in her favor, she makes no analysis of any individual factors.

Appellant’s Br. p. 12. The record shows that Mother claimed the tax exemption for all

previous years and was granted the tax exemption for 2014. Father was only granted the

tax exemption for 2012 and 2013. Without an analysis of the relevant factors, we simply

cannot say Mother has shown that the trial court’s conclusion was clearly erroneous.

10 III. Summer Camps

Mother next argues that the trial court erred by excluding C.V.’s summer diabetes

camps from the calculation of uninsured medical expenses. The trial court noted that,

under Guideline 8 of the Indiana Child Support Guidelines, summer camps “are treated as

an extraordinary educational expense which are not included in a base child support

obligation.” App. pp. 40-41. Because Father has not been ordered to pay extraordinary

expenses, the trial court found that, in order for Father to be “subject to contribution for

such expenses, the expenses must qualify as a medical expense.” Id. at 41. However, the

trial court did not “find that there is a preponderance of the evidence that the primary

purpose of the camps is medical or informational.” Id. Rather, the documents submitted

during the hearing indicated that “the camps are for children with diabetes and have

medical support available for the children” but “the purpose of the camps is recreational.”

Id. Consequently, the trial court concluded that the camps were extraordinary expenses

rather than uninsured medical expenses and that Father was not required to contribute to

those expenses.

On appeal, Mother argues Father failed to present evidence that the camps were

not medical expenses. However, we held in Tigner v. Tigner, 878 N.E.2d 324, 328-29

(Ind. Ct. App. 2007), that when uninsured medical expenses are challenged, the party

seeking the contribution has the burden of showing that the expenses were reasonable and

necessary. Consequently, Mother had the burden of demonstrating that the summer

camps qualified as medical expenses, and Mother presented no evidence that the purpose

of the camps was medical rather than recreational.

11 Mother also argues that, regardless of whether the camps were medical expenses,

Father should bear the burden of part of the expenses. Although it might be equitable for

Father to pay for a portion of the summer camps, we are required to follow the Child

Support Rules and Guidelines and the relevant statutes. Mother cites no authority to

demonstrate that Father is required to contribute to extraordinary expenses. We cannot

say that the trial court erred when it denied Mother’s request that Father contribute to the

cost of the summer camps.

Conclusion

Mother has failed to demonstrate that the trial court’s child support order is clearly

erroneous, that the trial court erred by granting the tax exemption to Father for 2012 and

2013, or that the trial court erred by denying her request that Father pay for a portion of

the summer camps. We affirm.

Affirmed.

ROBB, J., and BROWN, J., concur.