Matthew Banks Ashworth v. Kathryn (Ashworth) Ehrgott

FOR PUBLICATION




ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

KEVIN A. HOOVER                               DENNIS F. McCROSSON
Hill Fulwider, P.C.                           McCrosson & Associates, P.C.
Indianapolis, Indiana                         Indianapolis, Indiana


                                                                         FILED
                                                                      Jan 30 2013, 9:41 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                 CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




MATTHEW BANKS ASHWORTH,                       )
                                              )
      Appellant-Respondent,                   )
                                              )
             vs.                              )       No. 49A02-1205-DR-412
                                              )
KATHRYN (ASHWORTH) EHRGOTT,                   )
                                              )
      Appellee-Petitioner.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Patrick L. McCarty, Judge
                          Cause No. 49D03-0902-DR-5731



                                   January 30, 2013

                             OPINION - FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Respondent, Matthew Banks Ashworth (Father), appeals the trial

court’s Order on modification of child support in favor of Appellee-Petitioner, Kathryn

(Ashworth) Ehrgott (Mother).

       We affirm in part, reverse in part, and remand.

                                          ISSUES

       Father raises six issues on appeal, which we consolidate and restate as the

following three issues:

       (1) Whether the trial court abused its discretion in calculating Father’s 2012 and

          subsequent child support obligation and income withholding order;

       (2) Whether the trial court abused its discretion in determining Father’s additional

          child support obligation based on his 2010, 2011, 2012 bonuses and future

          irregular income; and

       (3) Whether the trial court erred by declining to credit Father for his overpaid child

          support obligations.

                          FACTS AND PROCEDURAL HISTORY

       This is the second appeal in this contentious child support dispute. See Ashworth

v. Ehrgott, 934 N.E.2d 152 (Ind. Ct. App. 2010). Because some of the facts in the prior

appeal are relevant to the present dispute, we include them here. Father and Mother were

married in 1999 and have two minor children. On October 31, 2006, following the


                                             2
parties’ agreement, the Chancery Court for Knox County, Tennessee dissolved their

marriage. Mother was awarded sole legal and physical custody under the divorce decree.

      The divorce decree also addressed Father’s alimony and child support obligations.

Commencing November 1, 2006, Father was to pay Mother alimony of $306,000 in

monthly installments of $1,500. However, the first nineteen months of installments were

to be paid at $1,000 per month and the deferred portion of $500 would incur interest at

8%. The total deferred amount of $9,500, plus interest, would be due on or before

December 31, 2008.      The alimony obligation was deemed non-dischargeable in

bankruptcy and terminable only on Mother’s death or full payment with interest.

Alimony payments were tax deductible by Father, while Mother was required to report

the alimony as income on her state and federal income tax returns. Child support was

calculated at $2,500 per month. This amount was to be recalculated in May 2008

pursuant to the Tennessee Child Support Guidelines. In May 2007, a Tennessee court

entered an order clarifying that Father’s $2,500 monthly child support obligation

represented an upward deviation of $650 in favor of Mother and would be recalculated in

May 2008.

      In 2007, Mother remarried and relocated to Indiana while Father took a job with

U.S. Bank and relocated to California. In June 2008, Father paid Mother $1,160 per

month in child support rather than the $2,500 specified the decree. In February 2009,

Mother registered the Tennessee child support order in the Marion County Superior

Court. In March 2009, the trial court entered a child support income withholding order

                                          3
directing Father’s employer to withhold $576.92 per week, which approximated the

$2,500 monthly child support amount specified in the divorce decree. On April 14, 2009,

Father filed an emergency petition to stay the income withholding order, alleging “that

the $2,500.00 per month amount of child support was only ordered to be paid until May

of 2008, at which time is [sic] was recalculated.” Id. Father also alleged that his living

expenses in California and $1,500 monthly alimony payment caused him significant

hardship.

      On June 2, 2009, Father filed a verified motion to modify his child support

obligation and provided his financial declaration which listed his 2009 annual income as

$133,500 or $2,292 per week. On June 11, 2009, the trial court modified Father’s child

support obligation to $500.75 per week.         After including the children’s educational

expenses as additional child support, the trial court entered a child support income

withholding order to U.S. Bank in the amount of $731.00 per week, which it later revised

to $612.10 per week.

      Thereafter, Father appealed, challenging the trial court’s calculation of his child

support obligation and raising numerous other issues. Two issues relevant to this appeal

were whether the trial court erred by deducting alimony payments from Father’s gross

income for the purpose of calculating child support and by declining to reduce his child

support obligation based on his tax bracket. Regarding the first issue, we held that

alimony payments were not to be included in determining Father’s gross income and

remanded to the trial court for recalculation of the weekly gross income. Id. at 161. On

                                            4
the second issue, we affirmed the trial court’s calculation of the disparate tax rate

between Indiana and California as 10.72%. Id. at 162-63. However, we remanded to the

trial court to calculate credits against Father’s child support for his payment of health

insurance premiums, preschool expenses, and private school tuition. Id. at 162, 164, 166.

        On December 7, 2010, following remand, Mother filed her verified petition for

modification of child support. Her verified petition alleged that Father was $27,000 in

arrears on his alimony obligation and as a result “should not be allowed an adjustment on

his income for child support calculation purposes” nor should alimony be deemed

received as part of her income for child support calculation purposes. (Appellant’s App.

p. 22). On December 22, 2010, Mother filed a pre-hearing submission which included

her proposed child support obligation worksheet (CSOW) and verified financial

declaration. While both the pre-hearing submission and the verified financial declaration

stated that Mother’s wages for 2010 were $510 per week, exclusive of alimony, Mother’s

CSOW relied upon the parties’ 2009 figures, listing Father’s weekly gross income as

$2,292 and Mother’s as zero, resulting in Father’s weekly child support obligation of

$422.

        That same day, the trial court held a hearing on Mother’s verified petition and

issued its Order on modification. The CCS records the following jacket entry:

        COURT Approves Attorney Conference Held. Argument Heard. Income
        withholding order of $422.00/Week does not reflect payment of spousal
        maintance [sic] therefore, not deductiable [sic] to his income or income to
        her.


                                            5
(Appellant’s App. p. 7). Thereafter, Mother appeared in Father’s bankruptcy proceedings

as a creditor. She opposed his attempt to discharge the alimony obligation in bankruptcy.

On October 27, 2011, Mother’s counsel deposed Father and he revealed that he received

two bonuses from his employer in 2010 and 2011.

      On December 12, 2011, Mother filed another verified petition for modification of

child support. She alleged that the last child support modification order occurred in

December 22, 2010 and that Father’s deposition testimony in the bankruptcy action

revealed 2010 and 2011 bonus payments totaling $180,000, which he did not disclose to

her or the trial court during the 2010 child support modification proceedings. On April 4,

2012, the trial court held a hearing on the modification petition. That same day, Father

filed his verified financial declaration, which listed his 2011 salary as $141,000 and 2011

bonus as $117,000. In his testimony, Father admitted that he did not disclose his 2010

bonus as part of calculating the child support modification in December 2010. Father

also admitted that contrary to his verified financial declaration he received a raise,

making his salary $146,000, and a bonus of $100,600 in February and March 2012.

      On April 24, 2012, the trial court issued its Order. It found that Father had failed

to disclose his 2010 and 2012 bonuses and that along with the 2011 bonus, these

constituted irregular income under the Ind. Child Support Guidelines. Further, the trial

court found that Father’s failure to disclose the 2010 and 2012 bonuses amounted to a

knowing concealment in violation of Ind. Trial Rules 26(E)(2) and (3) as well as Marion

County Family Law Rule 504 governing financial declarations. By failing to “report all

                                            6
of his income at the date of [the] December 22, 2010 Order,” the trial court concluded

that Father’s conduct constituted a knowing concealment in violation of T.R. 26(E)(2).

(Appellant’s App. p. 15).

         The trial court calculated Father’s child support obligation commencing April 4,

2012 in the following manner. First, it determined Father’s regular salary for 2012 to be

$141,000. Second, it reduced this amount by $18,000, which constituted Father’s annual

alimony obligation under the divorce decree and which, pursuant to this court’s decision

in Ashworth, could not be included in his salary. The remaining amount of $123,000 was

then reduced by what the trial court determined was the state tax differential of 5.7%
                                                        1
(.9475) between Indiana and California,                     resulting in Father’s 2012 salary for child

support purposes as $115,927.50 or $2,229.38 per week. Mother’s income for child

support purposes was calculated as $733 per week, which consisted of $385 in weekly

wages and $348 in weekly alimony payments under the divorce decree. Listing these

amounts on a CSOW attached to its April 24, 2010 Order, the trial court ordered Father’s

weekly child support to be $339.46, commencing April 4, 2012. However, an income

withholding order issued contemporaneously with the April 24, 2012 Order listed the

amount to be withheld as $348.




1
 Although Ashworth upheld the trial court’s calculation of state tax differential of 10.72%, Father testified at the
April 4, 2012 hearing that his 2010 combined California federal and state tax obligation was 27.63% of his adjusted
gross income. Applying this amount to the Indiana presumed rate of 21.88%, resulted in a state tax differential of
5.7%. The trial court adopted this amount in its April 24, 2012 Order and neither party challenges it on appeal.

                                                            7
       The trial court also considered the effect of Father’s failure to disclose his

bonuses. It concluded that Father failed to report all of his income at the date of the

December 22, 2010 Order. Noting that Mother had not moved under T.R. 60(B) to set

aside the December 22, 2010 Order, the trial court invoked its equitable jurisdiction to

grant relief. Specifically, the trial court concluded that Father’s failure to disclose the

bonus payments constituted fraud on the court.

       Cognizant that neither the Tennessee decree nor any subsequent child support

modification had addressed Father’s irregular income, the trial court calculated his

additional child support obligation by “allocating a fixed percentage” of Father’s bonus

payments to child support. (Appellant’s App. p. 7). The trial court relied on the Indiana

Child Support Guideline 3(A), comment 2(b) to calculate an irregular income ratio.

       Referring to the December 22, 2010 Order and its attached CSOW, which showed

Father’s weekly income and child support obligation as $2,292 and $422, respectively,

the trial court calculated the irregular income allocation ratio as .1841. It applied this

ratio to Father’s 2010, 2011, and 2012 bonuses in the following manner. After reducing

Father’s 2010 bonus of $21,500 by the state tax differential of .9475, the trial court

concluded that Father’s bonus eligible for child support was $20,371.25. Applying the

ratio of .1841, the trial court awarded a lump sum payment of $3,730.56 to Mother.

Utilizing the same methodology for Father’s 2011 and 2012 bonuses, the trial court

further awarded Mother $20,301.17 for the 2011 bonus and $17,455.53 for the 2012

bonus, resulting in a total lump-sum award of $41,487.26. Finally, it ordered that the

                                            8
additional child support obligation resulting from any subsequent bonuses would be

calculated in the same manner using .1841 as the irregular income ratio.

      Father now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

      Father challenges the trial court’s modification of his child support obligation on

several grounds.   First, he challenges the trial court’s calculation of his 2012 and

subsequent weekly child support obligation by arguing that the trial court did not account

for alimony payments and issued an income withholding order inconsistent with its April

24, 2012 Order.    Second, Father argues that the trial court abused its discretion in

calculating his additional child support obligation based on his 2010, 2011, 2012, and

subsequent employment bonuses.         Specifically, he contends that the method of

calculating his additional child support resulting from his irregular income amounts to an

abuse of discretion; that the trial court’s lump sum award of his 2011 bonus represents an

impermissible retroactive modification of his child support obligation; and that the trial

court abused its discretion by awarding part of his 2010 bonus as additional child support.

Finally, Father asserts that the trial court abused its discretion by not addressing his

alleged overpayment of child support. We address each contention in turn.

                                   I. Standard of Review

      The trial court’s calculation of child support is presumptively valid. Martinez v.

Deeter, 968 N.E.2d 799, 805 (Ind. Ct. App. 2012). The trial court’s decision regarding

child support will be upheld unless it has abused its discretion. Id. A trial court abuses

                                            9
its discretion when its decision is clearly against the logic and the effect of the facts and

circumstances before it or if it has misinterpreted the law. Id. Our standard of review is

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

conclusions of law. See id. In such instances, we “shall not set aside the findings or

judgment unless clearly erroneous, and due regard shall be given to the opportunity of the

trial court to judge the credibility of witnesses.” Id. Where, as here, it appears that the

trial court issued the 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 found, and we may affirm a general judgment on any

theory supported by the evidence adduced at trial. Id.

                              II. 2012 Child Support Obligation

       We first address Father’s two challenges to the trial court’s calculation of his 2012

and subsequent child support obligation. Father argues that the trial court abused its

discretion by declining to consider his alimony payments to Mother in contravention of

our opinion in Ashworth and by issuing an income withholding order inconsistent with its

April 24, 2012 Order.      While Mother concedes that the trial court’s findings are

inconsistent with its income support order, she contends that the alimony payments she

received were payments in arrears and thus not includable in her current income for 2012

child support calculation purposes.

       Father argues that evidence at the hearing established that he is currently under a

monthly garnishment of $2,530.28 for alimony, and that an additional lump sum of

                                             10
$30,000 was garnished from his February 2012 bonus.            The annual total of these

garnishments in 2012 would be $60,370 or $1,161 per week. He contends that contrary

to this court’s decision in Ashworth, the trial court did not deduct such payments from his

weekly gross income nor increase Mother’s weekly gross income by an equivalent

amount in calculating his 2012 child support obligation. As a result, he contends that the

trial court’s calculation of $348 is off by $813, which should be credited to his weekly

gross income and added to Mother’s weekly gross income.

       In Ashworth, we determined that the $306,000 payment provision in the parties’

divorce decree represented alimony, rather than a property settlement. Ashworth, 934

N.E.2d at 160-61. As a result, the “$306,000 payment to [Mother] is in the nature of

maintenance and therefore $348.84 should be deducted from [Father’s] weekly gross

income.” Id. at 161. The $306,000 was “broken down into [$1,500] monthly payments

(or $348.84 per week).” Id. at 160.

       We conclude that the trial court calculated Father’s child support obligation

consistently with our opinion in Ashworth. The CSOW attached to the trial court’s April

24, 2012 Order lists Mother’s weekly gross income as $733, which, based on her verified

financial declaration, consisted of her weekly wages of $385 and a weekly alimony

payment of $348. The trial court determined that Father’s gross salary for 2012 was

$141,000. It reduced this amount by $18,000 or $1,500 monthly to account for his

alimony payments. Father’s weekly gross income was calculated as $2,229.38, which

included a deduction for the state tax differential. Thus, the effect of the approximate

                                            11
weekly amount of alimony payments was taken into account by the trial court as

instructed by this court in Ashworth.

       Father also urges us to conclude that the $30,000 lump-sum and the $2,530.28

monthly garnishments represent excess withholdings. However, Father does not contest

that these amounts represent “unsatisfied alimony payments which [he] had not made.”

(Appellant’s Br. p. 14). Further, Father did not provide the trial court with records

sufficiently detailing the extent of his alimony obligation and arrearage.       Although

Father’s payment records reflect that deductions from his paycheck were taken by his

employer, the record does not substantiate what such deductions were for, nor does it

contain the garnishment orders upon which Father’s wages were garnished. Without this

information, we cannot conclude differently from the trial court. Furthermore, Mother

testified that the amount she receives through garnishment varies but is roughly $2,100.

She also testified that she had not received the $30,000 lump-sum amount. As we held in

Ashworth, the trial court does not abuse its discretion in not deducting unpaid alimony

from Father’s weekly gross income. Ashworth, 934 N.E.2d at 162. In sum, because

Father has not shown that the alimony remitted to Mother by garnishment represents

payment on the current amount of alimony, we conclude that the trial court did not abuse

its discretion by relying upon the weekly alimony amount specified in Ashworth.

       Father also contends that the trial court’s income withholding order is inconsistent

with the amount it ordered. Both the April 24, 2012 Order and its attached CSOW state

that Father’s support obligation is $339.46.        However, the trial court’s income

                                            12
withholding order issued the same day directs U.S. Bank to withhold the amount of $348

per week. The difference is $8.54.

      A review of the record reveals that this was likely a simple scrivener’s error

resulting from an unintended transposition of the alimony obligation of $348 to the

income withholding order. Although Mother concedes that this was likely a scrivener’s

error, she argues that since the trial court used Father’s 2011 salary of $141,000 rather

than his 2012 salary of $146,000, there is no need to remand for a difference of $8.54 per

week. Even though Father requests us to remand to the trial court to issue a corrected

income withholding and credit the difference to his obligation to pay a portion of his

2012 bonus, we decline Father’s request to credit a portion of his 2012 bonus payable to

Mother as child support, but nevertheless remand to the trial court to determine the

amount of credit owed and the manner in which it shall be applied.

                              III. Irregular Income Allocation

      Father next argues that the trial court abused its discretion in calculating his

additional child support obligation based on his 2010, 2011, 2012, and subsequent

employment bonuses.      Specifically, he contests the trial court’s use of an irregular

income allocation ratio of .1841 and the trial court’s methodology in determining his

irregular income. Further, he argues that the trial court abused its discretion in deeming

his 2011 and 2010 bonuses as irregular income.

                         A. Irregular Income Allocation Ratio



                                           13
       The trial court found that Father’s “bonus payments by his employer constitute

substantial irregular income and had the marriage remained intact, the minor children

would have benefitted.” (Appellant’s App. p. 16). Weekly gross income is broadly

defined when determining parents’ income in the child support guideline calculation. See

Knisley v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007), reh’g denied. Income from

any source, including bonuses, may be considered. Child Supp. G. 3(A). While a very

fact-sensitive determination, irregular income may be included in the total income

approach taken by the Guidelines. Knisley, 875 N.E.2d at 340.

       The Guidelines suggest that an equitable method of treating irregular income may

be to require the obligor to pay a fixed percentage of the irregular income rather than

determining the average of irregular income and including it in the obligor's gross income

calculation.   Meredith v. Meredith, 854 N.E.2d 942, 948 (Ind. Ct. App. 2006).

Specifically, comment 2(b) to Guideline No. 3 provides:

       One method of treating irregular income is to determine the ratio of the
       basic child support obligation (line 4 of the worksheet) to the combined
       weekly adjusted income (line 3 of the worksheet) and apply this ratio to the
       irregular income during a fixed period. For example, if the basic obligation
       was $110.00 and the combined income was $650.00, the ratio would be
       .169 ($110.00 / $650.00). The order of the court would then require the
       obligor to make a lump sum payment of .169 of the obligor’s irregular
       income received during the fixed period.

       Here, the trial court relied on its December 22, 2010 Order adopting Mother’s

CSOW to arrive at an irregular income allocation ratio of .1841. That CSOW showed

Father’s weekly child support obligation as $422. Dividing $422 by the combined

adjusted weekly income of $2,292 resulted in an irregular income ratio of .1841.
                                      14
However, Father contends that the .1841 irregular income ratio is incorrect in light of the

CSOW attached to the April 24, 2012 Order. Using the April 24, 2012 Order’s CSOW,

he points out that the weekly child support obligation of $456 divided by $2,963.38, the

combined weekly adjusted income of the parties, yields a ratio of .1539. In response,

Mother insists that the trial court had authority and discretion to use the irregular income

allocation ratio based on the CSOW attached to the December 22, 2010 Order. We do

not agree.

       As noted before, the December 22, 2010 Order relied upon the parties’ financial

declarations filed in 2009. The CSOW attached to the April 24, 2012 Order relies upon

the parties’ most recent financial declarations. By using an income allocation ratio based

on the parties’ 2009 financial data, we conclude that the trial court’s decision is clearly

against the logic and effect of the facts and circumstances before it. Accordingly, we

reverse the trial court’s use of .1841 as an irregular income ratio applicable Father’s 2012

and subsequent bonuses and remand to the trial court to calculate and apply an irregular

income ratio using the CSOW attached to its April 24, 2012 Order.

                                     B. Methodology

       Father next challenges the trial court’s use of the methodology provided in

comment 2(b) to Child Support Guideline No. 3. That comment cautions that use of the

irregular income allocation ratio “will result in an overstatement of support due” under

certain circumstances:

       The use of this ratio will not result in an exact calculation of support paid
       on a weekly basis. It will result in an overstatement of the additional
                                             15
          support due, and particularly so when average irregular income exceeds
          $250.00 per week or exceeds 75% of the regular adjusted Weekly Gross
          Income. In these latter cases the obligor may seek to have the irregular
          income calculation redetermined by the court.

          Father argues that the trial court abused its discretion by using the percentage

methodology to determine his irregular income. In support, he provides two sample

calculations to illustrate that the percentage method used by the trial court overstates his

weekly child support obligation by $143.08 and $112.62, respectively. He therefore

requests that only 10% of his 2012 and future bonuses constitute additional child support,

which in his view, overstates his weekly child support obligation only by $14.34.

          We note that Father did not present this argument to the trial court and it is

therefore waived. See Heaphy v. Ogle, 896 N.E.2d 551, 557 (Ind. Ct. App. 2008).

Waiver notwithstanding, Father’s proposed CSOW offered at the hearing, which took the

average amount of his 2010 through 2012 bonuses and combined them with his current

salary, calculated a weekly child support obligation of $348. In Martinez, we remanded a

child support calculation of irregular income based on the parties’ agreement that a

percentage method be used to determine the child support obligation from irregular

income. Martinez, 968 N.E.2d at 807. On remand, we held that the trial court could

determine the ratio at its discretion as the parties agreed on the method but not the ratio.

See id.

          We see no reason to disturb the trial court’s discretion here. Father’s argument

does not reject the methodology used in the Guidelines, but only the allocation ratio.


                                             16
Accordingly, we find no abuse of discretion with the trial court’s decision to use the

income allocation method to determine Father’s additional child support obligation.

                                      C. 2011 Bonus

       Father also challenges the allocation of his 2011 bonus as irregular income. He

argues that the trial court’s award of $20,301.17 based upon his 2011 bonus represents an

impermissible retroactive modification of child support obligation.

       The trial court found that Father received a bonus of $117,000 in February 2011,

which he reported on his verified financial declaration on April 4, 2012. The trial court

reduced the bonus by the state tax differential of 5.7% and applied an irregular income

factor of .1841, resulting in a lump-sum award of $20,301.87. Father contends that

because his bonus was paid in February 2011 and Mother’s petition for modification was

filed on December 12, 2011, the trial court erred by ordering him to pay any sum prior to

the date of the petition to modify.

       Generally, retroactive modification of child support is erroneous if the

modification purports to retroactively modify a delinquent child support obligation and

relates back to a date earlier than that of the petition to modify. See Knisely, 875 N.E.2d

at 342. While the general rule has certain exceptions not relevant here, we have also

permitted a retroactive payment of child support under different circumstances.         In

R.R.F. v. L.L.F., 935 N.E.2d 243, 248 (Ind. Ct. App. 2010), we ordered the father to pay

child support for a period of time predating the filing of the mother’s petition to modify

child support obligation. We concluded that because that the parties’ divorce decree did

                                            17
not address and no order had issued upon the father’s obligation to pay child support

between the child’s eighteenth birthday and his twenty-first birthday, ordering the father

to pay child support for a four-month period preceding the filing of the petition was not a

retroactive modification of support. Id. Likewise, in Knisley, we affirmed the trial

court’s retroactive award of child support based upon the father’s receipt of a personal

injury settlement payment seven months prior to the mother’s petition to modify.

Knisley, 875 N.E.2d at 341-42.

       Here, it is undisputed that neither the parties’ divorce decree nor any modification

order addressed Father’s irregular income. Further, Father’s 2011 bonus, though paid in

February 2011, was listed in his April 4, 2012 verified financial declaration. Father

himself testified that he believed his bonus to be part of his regular income by urging the

trial court to adopt an average of his three years of bonuses in calculating his 2012 child

support obligation. Under these circumstances, we decline to find an impermissible

retroactive modification of child support. Further, because Father makes no challenge to

the trial court’s use of .1841 as the applicable income allocation ratio with respect to the

2011 bonus, we affirm the trial court’s award of $20,301.17 in additional child support.

                                      D. 2010 Bonus

       Father also argues that the trial court abused its discretion by ordering him to pay

$3,730.56 as additional child support based on his 2010 bonus. The trial court found that

Father did not disclose his 2010 bonus and concluded that this amounted to a knowing

concealment in violation of T.R. 26(E)(2) and (3) as well as Marion County Family Law

                                            18
Rule 504 governing financial declarations. Concluding that its December 22, 2010 Order

was obtained by fraud upon the court, the trial court invoked its equitable jurisdiction to

grant relief since Mother had not moved under T.R. 60(B) to set the Order aside.

Referring to the December 22, 2010 Order and its attached CSOW, which showed

Father’s weekly income and child support obligation as $2,292 and $422, respectively,

the trial court calculated an irregular income allocation ratio of .1841 and then applied

this to Father’s tax-adjusted 2010 bonus amount of $20,263.75,2 resulting in an award of

$3,730.56.

        We note that Father does not challenge the trial court’s findings on his knowing

concealment of the 2010 bonus.3 Instead, he argues that his bonus is already reflected in

the December 22, 2010 Order and that the lump-sum award “essentially twice awards

[Mother] a portion of [Father’s] bonus.” (Appellant’s Br. p. 8). We disagree.

        The trial court’s December 22, 2010 Order was issued in response to Mother’s

December 7, 2010 modification petition.                   In her pre-hearing submission, Mother

specifically sought a determination of Father’s “child support obligation commencing
2
 Father points out the April 24, 2012 Order inconsistently states the tax-adjusted amount, with Paragraph
No. 47 listing it as $20,371.25 and footnote no. 3 listing it as $20,263.75. However, Father adopts the
award amount of $3,730.56 in his argument, which corresponds to the amount awarded by the trial court
in Paragraph No. 48 of the Order.
3
 In an attempt to avoid waiver, Father argues in his reply brief that Mother failed to initiate discovery by
serving him a blank financial declaration in 2010. As a result, he contends that he was under no
obligation to update his 2009 financial declaration to include his 2010 bonus. However, “[a]pellants are
not permitted to present new arguments in their reply briefs, and any argument an appellant fails to raise
in his initial brief is waived for appeal.” In re Paternity of P.B., 932 N.E.2d 712, 725 n. 12 (Ind. Ct. App.
2010). Thus, because Father failed to contest the trial court’s finding of fraud upon the court in his
appellate brief, the issue is waived.

                                                     19
June 11, 2009.” (Appellant’s App. p. 24). Mother’s CSOW submitted in support relied

on the parties’ 2009 financial information, which listed Father’s weekly income as $2,292

and Mother’s income as zero because Mother argued that the trial court should not figure

alimony in either party’s income because Father was in arrears.        The weekly child

support obligation resulting from this data was $422, which the trial court ordered as

evidenced by the December 22, 2010 CCS entry.

      At the 2012 hearing, Father’s counsel admitted that the amount of $422 “was

based upon a prior number.” Though Father’s counsel attempted to argue that this

amount may have included Father’s prior, albeit nominal, bonuses, Mother’s counsel

clarified that the “$422 came from that [CSOW] that we were all working from back in

2009,” and Father’s counsel relented by stating “the $422 is fine.” (Tr. pp. 20-21).

Consequently, Father’s 2010 bonus of $21,500 could not have been relied upon by the

parties in calculating the December 22, 2010 Order because that Order was based on

2009 financial figures. Father’s argument that Mother has twice been awarded for the

bonus fails for the same reason. Accordingly, the trial court did not abuse its discretion

by awarding a portion of his 2010 bonus as additional child support.

                                      IV. Overpayment

      Finally, Father argues that the trial court abused its discretion by not addressing

his alleged overpayment of child support. Specifically, he asserts an overpayment of

“child support to [Mother] in the amount of [$5,794] covering the period of [June 2008]

through [December 2010].”       (Appellant’s Br. p. 16).     Father claims that “[s]uch

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overpayment resulted from a combination of varying amounts ordered by the trial court

through income withholding orders and then modification of a portion of those amounts”

by this court’s opinion in Ashworth. (Appellant’s Br. p. 16). He requests that a credit be

applied to that portion of his 2012 and future bonuses payable as child support. In

response, Mother argues that Father failed to raise the issue at the December 22, 2010

hearing and further that Father is barred by the equitable doctrine of unclean hands.

       Our opinion in Ashworth determined that the following amounts should be

credited against Father’s child support obligation. First, Father was to receive credit

against his child support obligation for health insurance premiums.          Ashworth, 934

N.E.2d at 162.     Next, Father was to receive credit for payment of his daughter’s

preschool expenses since there was no evidence that Mother had worked or sought a job

during the relevant period. Id. at 164. Finally, Father was to receive credit for his son’s

private school tuition as the parties had not agreed on private schooling for their children.

Id. at 166. Calculation of these credits was to be determined on remand. Id. at 162, 164,

166.

       We do not agree that the trial court abused its discretion by not addressing Father’s

claim for reimbursement.      Father did not present the trial court or this court with

information sufficient to provide a meaningful review of his claims. At the hearing,

Father offered a spreadsheet purporting to compare his actual monthly child support

paycheck deductions with an amount purporting to constitute the child support

calculation resulting from this court’s opinion in Ashworth. However, Father has not

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provided details to determine what amounts were deducted and what amounts should

have been credited. More importantly, Father had an opportunity on remand to ensure

that these amounts were properly credited to him. However, the parties testified that the

December 22, 2010 Order represented the parties’ agreement on Father’s child support

obligation. Consequently, we find that Father has invited the error he complains of and is

therefore estopped from further seeking credit for amounts overpaid from June 2008 to

December 2010. See Reinhart v. Reinhart, 938 N.E.2d 788, 790-93 (Ind. Ct. App. 2010).

                                     CONCLUSION

       Based upon the foregoing, we conclude that the trial court did not abuse its

discretion in calculating Father’s 2012 and subsequent weekly child support obligation.

We conclude that the trial court abused its discretion by using an irregular income factor

based upon the parties’ prior financial declarations to determine Father’s additional child

support obligation for his 2012 and subsequent irregular income. However, the trial court

did not abuse its discretion in its use of an income allocation ratio to determine the

amount of additional child support. Further, we hold that the trial court did not abuse its

discretion in calculating Father’s child support obligation based on his irregular income

for 2011 and 2010. We reverse and remand with instructions to 1) apply the income

allocation factor of .1549 to Father’s 2012 and future bonuses; and 2) correct a

scrivener’s error in the April 24, 2010 Income Withholding Order and calculate the

resulting credit owed to Father and its repayment method.

       Affirmed in part, reversed in part, and remanded.

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BAKER, J. and BARNES, J. concur




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