In re Paternity of D.A. and A.A.: Scott Christopher Adkins v. Mendi Marie McQueen (mem. dec.)

MEMORANDUM DECISION
Mar 19 2015, 9:29 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 ATTORNEY FOR APPELLEE
Natalie R. Dickey Steven Stoesz
Indianapolis, Indiana Stoesz & Stoesz
Westfield, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re Paternity of D.A. and A.A.: March 19, 2015
Court of Appeals Case No.
Scott Christopher Adkins, 30A04-1407-JP-303
Appellant-Respondent, Consolidated Appeal from the
Hancock Circuit Court
v. The Honorable Richard D. Culver,
Judge
The Honorable R. Scott Kirk,
Mendi Marie McQueen, Commissioner
Appellee-Petitioner, Trial Court Cause Nos. 30C01-1403-
JP-80 and 30C01-1403-JP-81

Bradford, Judge.

Case Summary
[1] Appellee-Petitioner Mendi Marie McQueen (“Mother”) and Appellant-

Respondent Scott Christopher Adkins (“Father”) (collectively “the parties”)

have two children together. On March 13, 2014, Mother initiated two separate
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 actions to establish the paternity of each child. Father acknowledged paternity

of both children, but the parties could not reach an agreement on parenting time

or child support. The trial court issued two orders which, among other things,

established a parenting time schedule and required Father to pay $128.40 per

child per week. Father claims that the trial court erred in its application of the

Indiana Child Support Guidelines (“the Guidelines”) in four respects: (1)

neglecting to enter findings of fact or complete a child support worksheet; (2)

calculating a separate support obligation for each child rather than calculating a

single support obligation for both children; (3) failing to include Mother’s

settlement annuity proceeds in its calculation of her weekly gross income; and

(4) failing to specify which party is entitled to claim the children for federal and

state tax exemption purposes. We reverse and remand with instructions.

Facts and Procedural History
[2] Before separating in January of 2013, the parties lived together as an unmarried

couple for nine years, during which time they had two children together. On

March 13, 2014, Mother filed two petitions to establish paternity–one for each

child. As a result, two paternity actions were opened under separate cause

numbers. On March 27, 2014, Father filed a petition to establish custody,

support, and visitation in each action. The parties agreed to consolidate the

cases and, on April 18, 2014, the trial court held a hearing on all pending

motions. Because the parties had agreed to joint legal custody, the hearing

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 focused on the issues of parenting time and child support. The majority of the

hearing focused on the parties’ sources of income and living arrangements.

[3] Father is a union plumber and makes approximately $35.00 per hour. As a

union member, Father has occasional, typically brief periods of unemployment

(“lay-off periods”) during which he receives unemployment benefits in the

amount of $390.00 per week. Father’s union provides health insurance for the

children while he is employed and for a limited period of time during his lay-off

periods.

[4] Mother is unemployed but has been receiving monthly structured settlement

payments of $6394.25 as a result of being involved in a train accident when she

was three years old. Mother’s father was also involved in the accident and

passed away. Each month, Mother receives $3994.25 for her portion of the

settlement, and $2400 for her father’s portion. Mother is capable of working

but chooses instead to use the settlement money as her means of support.

Mother has previously worked at Huntington Bank and Check Smart, making

$11.22 and $10.50 per hour, respectively. Mother also receives rental income

from a property she leases to her mother.

[5] On May 15, 2014, the trial court issued two separate orders, one under each

cause number, which were identical aside from the children’s names and birth

dates. Each order required Father to pay $128.40 per child per week. Neither

order indicated which party was entitled to claim the children for state and

federal tax exemption purposes. On May 23, 2014, Father filed a motion to

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 correct errors requesting that the trial court complete a child support worksheet

to explain its calculation of Father’s support obligation and otherwise explain

or remedy its deviations from the Indiana Child Support Guidelines (“the

Guidelines”). A hearing on the motion to correct errors was held on June 6,

2014. On June 9, 2014, the trial court denied Father’s motion.

Discussion and Decision
I. Standard of Review
[6] Initially, we note that Mother failed to timely file a reply brief.

When an appellee fails to file a response brief, we need not develop his
arguments. Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App.
1999). “However, this circumstance in no way relieves us of our
obligation to decide the law as applied to the facts in the record in
order to determine whether reversal is required.” Blunt-Keene v. State,
708 N.E.2d 17, 19 (Ind. Ct. App. 1999). Rather, we apply a less
stringent standard of review in which we may reverse the trial court if
the appellant makes a prima facie showing of reversible error. Id.
“Prima facie in this context is defined as ‘at first sight, on first
appearance, or on the face of it.’ Where an appellant is unable to meet
this burden, we will affirm.” Id. (quoting Johnson County Rural Elec.
Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985)).
E & L Rental Equip., Inc. v. Gifford, 744 N.E.2d 1007, 1009-10 (Ind. Ct. App.

2001).

II. Child Support Calculation Method
[7] Father claims (1) that the trial court was required to provide a child support

worksheet detailing its calculation of Father’s child support obligation, (2) that

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 the trial court was required to make one calculation for both of the children’s

support, as opposed to two separate calculations for each child individually,

and (3) that the trial court should have included Mother’s settlement annuity in

its calculation of her weekly gross income.

A. Child Support Worksheet
[8] “Indiana Child Support Guideline 3(B)(1), Income Verification, provides that a

child support worksheet shall be completed and signed by both parties and filed

with the court ‘when the court is asked to order support’….” Pryor v. Bostwick,

818 N.E.2d 6, 11 (Ind. Ct. App. 2004) (citing Dye v. Young, 655 N.E.2d 549, 550

(Ind. Ct. App. 1995)). The commentary to Guideline 3(B) provides, in

pertinent part:

If the parties disagree on their respective gross incomes, the court
should include in its order the gross income it determines for each
party. When the court deviates from the Guideline amount, the order
or decree should also include the reason or reasons for deviation. This
information becomes the starting point to determine whether or not a
substantial and continuing change of circumstance occurs in the
future.
In Dye, we found that the trial court erred by not making findings concerning

the parties’ incomes or completing a child support worksheet–a failure which

left this court unequipped to determine whether the trial court complied with

Guidelines. 655 N.E.2d at 551.

[9] On November 14, 2014, Mother filed a motion for remand in which she stated,

1. … neither [Father] or [Mother] submitted proposed Child Support
Worksheets before, during or after the presentation of evidence.

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 2. [Mother] believes that the trial court should have prepared a Child
Support Order or otherwise explained the method of calculating child
support in its Order. Because this was not done, [Mother] believes that
the Court of Appeals is likely to rule, as it did in [Pryor, 818 N.E.2d 6],
[sic] the case be remanded back to the trial court with instructions that
both parties submit proposed Child Support Worksheets and that the
court then issue its Order after recalculating the same.
Because the parties agree on this issue, and because this court is unable to

adequately review the trial court’s determination of support without child

support worksheets, we remand with instructions that both parties submit

proposed child support worksheets and that the trial court then issue an order

which comports with the requirements of the Guideline 3(B), and that explains

any deviations therefrom.

B. Mother’s Structured Settlement Income
[10] “‘Weekly gross income’ is broadly defined to include not only actual income

from employment but also potential income and imputed income from ‘in-kind’

benefits.” Ratliff v. Ratliff, 804 N.E.2d 237, 245 (Ind. Ct. App. 2004) (citing

Glover v. Torrence, 723 N.E.2d 924, 936 (Ind. Ct. App. 2000)). Indiana Child

Support Guideline 3(A) provides, in pertinent part:

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. Social Security disability
benefits paid for the benefit of the child must be included in the
disabled parent’s gross income. The disabled parent is entitled to a

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 credit for the amount of Social Security disability benefits paid for the
benefit of the child. Specifically excluded are benefits from means-
tested public assistance programs, including, but not limited to,
Temporary Aid To Needy Families (TANF), Supplemental Security
Income, and Food Stamps.
(emphasis added). “Furthermore, the Guidelines urge judges and practitioners

to find ways to include income that would have benefited the family had it

remained intact, as well as to be receptive to deviations where reasons justify

them.” Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007) (citing Harris

v. Harris, 800 N.E.2d 930, 939 (Ind. Ct. App. 2003)).

[11] Although it is unclear without a child support worksheet to review, based on

the parties’ arguments at the motion to correct errors hearing, it seems likely

that the trial court did not include Mother’s settlement proceeds in its

calculation of her gross income. During the hearing, the parties disagreed on

whether to categorize the payments as an annuity or a structured settlement.

Unlike annuities, structured settlements are not specifically included in the

Guidelines as gross income. Consequently, Mother contends that the two are

distinct. BLACK’S LAW DICTIONARY defines “annuity” as, “A fixed sum of

money payable periodically; specif., a particular amount of money that is paid

each year to someone.” BLACK’S LAW DICTIONARY 109 (10th ed. 2014).

BLACK’S LAW DICTIONARY defines “structured settlement” as

A settlement in which the defendant agrees to pay periodic sums to the
plaintiff for a specified time.
“Especially in personal injury and product liability
cases, structured settlements — i.e., those which provide
for an initial cash payment followed by deferred

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 payments in future years, normally on some annuity
basis…”
BLACK’S LAW DICTIONARY 1582 (10th ed. 2014). Aside from the fact that her

settlement checks clearly state that they are “Annuity Benefit[s],” Mother’s Ex.

1 & 2, Mother’s argument still fails because the two concepts are so closely

associated that they do not warrant different treatment in this context.

[12] At the trial court, Mother also argued that the settlement was compensation for

personal injuries and so should not be considered gross income. However, the

Guidelines definition of gross income includes similar types of compensation,

such as workmen’s compensation and disability benefits. Furthermore, this

court has held that payments for personal injury may be included in the income

calculation. Knisely, 875 N.E.2d at 340. “Guidelines urge judges and

practitioners to find ways to include income that would have benefited the

family had it remained intact….” Knisely, 875 N.E.2d at 340. Mother is not

disabled, does not work despite being physically able, and supports herself with

her settlement proceeds. It is quite apparent that the settlement funds would

have benefited the family had it remained intact. Furthermore, this court has

consistently interpreted the Guidelines’ definition of gross income to be broadly

inclusive. Ratliff, 804 N.E.2d at 245. Based on the foregoing, we think it is

clear that Mother’s structured settlements fall within the Guidelines’ definition

of gross income.

[13] Consequently, the trial court’s failure to include Mother’s settlement proceeds

in her gross income calculation amounts to a deviation from the Guidelines.

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 “When the court deviates from the Guideline amount, the order or decree

should also include the reason or reasons for deviation.” Commentary to Child

Supp. G. 3(B). On remand, the trial court should include Mother’s settlement

proceeds in her gross income or provide justification should it decline to do so.

C. Whether Trial Court was Required to Calculate One
Support Obligation for Both Children
[14] Father claims that the trial court improperly conducted a separate support

calculation for each child in deviation of the Guidelines.1 We addressed a

similar situation in Lamon, and determined that, according to the Guidelines,

there is a presumption that one child support calculation should be completed

for all of the parties’ children, i.e. children should be treated as a group instead

of individually. 611 N.E.2d 154, 158 (Ind. Ct. App. 1993). This is done to

ensure “that the [] children [are] supported, as closely as possible, as they would

have been had the family remained intact.” Id. The commentary to Guideline

1 explains the reasoning behind this presumption:

In developing these Guidelines, a great deal of reliance was placed on
the research of Thomas J. Espenshade, (Investing In Children, Urban
Institute Press, 1984) generally considered the most authoritative study
of household expenditure patterns…. Espenshade’s estimates
demonstrate that amounts spent on the children of intact households

1
Without the benefit of a child support worksheet, it is unclear whether the trial court did in fact
conduct two separate support calculations. However, because Mother did not file a brief, we will treat
Father’s claim in this regard as true for the purposes of this appeal. See Lamon v. Lamon, 611 N.E.2d 154 n. 2
(Ind. Ct. App. 1993). In any case, we think it prudent to address the issue to prevent unnecessary re-litigation
and provide the trial court with guidance on remand as to the appropriate method of calculating support for
multiple children.

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 rise as family income increases. They further demonstrate at constant levels
of income that expenditures decrease for each child as family size increases.
(emphasis added). On remand, the trial court should calculate a single support

obligation for both children.

IV. Federal Tax Exemptions
[15] Indiana Code Section 31-16-6-1.5 provides that, “A court shall specify in a child

support order which parent of a child may claim the child as a dependent for

purposes of federal and state taxes.” The trial court did not provide as such in

its orders. We note that during the hearing on Father’s motion to correct

errors, while addressing who should receive tax exemptions, counsel for Mother

conceded this point, stating that “maybe alternating is the thing to do.” Tr. p.

39. We remand with instructions that the trial court, in consideration of the

factors outlined in Indiana Code Section 31-16-6-1.5(b), determine which party

may claim one or both of the children as dependents for tax exemption

purposes.

Najam, J., and Mathias, J., concur.

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