Jun 03 2015, 7:13 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Deborah Farmer Smith R. Lee Money
Campbell Kyle Proffitt LLP Greenwood, Indiana
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Francis M. Laux, June 3, 2015
Appellant-Respondent, Court of Appeals Case No.
29A02-1410-DR-719
v. Appeal from the Hamilton Superior
Court.
The Honorable Jerry M. Barr, Senior
Pauletta Leann (Laux) Ferry, Judge.
Appellee-Petitioner Cause No. 29D02-9804-DR-192
Baker, Judge.
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[1] Francis Laux (Father) appeals the trial court’s order on Pauletta (Laux) Ferry’s
(Mother’s) petition to modify Father’s child support obligation. Father raises
the following arguments on appeal: (1) the trial court erroneously determined
Father’s child support obligation; (2) the trial court erroneously calculated
Father’s accrued child support underpayment. We find that the trial court
erroneously credited Mother for Child’s health insurance payments given that
her husband (Stepfather) makes those payments and the trial court elected to
treat Mother and Stepfather as separate financial entities. We find no other
error. We affirm in part, reverse in part, and remand with instructions.
Facts
[2] Mother and Father were married at some point in the past. One child, Child,
was born of the marriage on August 28, 1996. Mother and Father were
divorced in March 1999, when the trial court entered a decree of dissolution
incorporating their settlement agreement.
[3] The parties’ settlement agreement provided that Father would pay child support
in the amount of $1,000 per month. At that time, Father’s income totaled
$1,615.38 per week.
[4] On August 20, 2013, Mother filed a petition to modify Father’s child support
obligation. The trial court held an evidentiary hearing on the petition on May 7
and May 28, 2014. At the hearing, the following evidence was offered:
During the four-year period preceding the hearing, Father’s income
averaged $6,136 per week. At the time of the hearing, he was a self-
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employed chiropractor with multiple offices in Marion County, and his
weekly income during the year prior to the hearing totaled $4,943.50.
Father testified that his income was “volatile” and “fluctuating.”
Appellant’s App. p. 14.
During that same four-year period, Mother’s income declined from
$2,884.61 to $462 per week, and her average weekly income totaled
$249.66. At the time of the hearing, she was employed as a real estate
agent.
Father and Mother have both remarried and have spouses with whom
they share household expenses.
Stepfather pays for Child’s health insurance. That cost is deducted from
Stepfather’s paycheck in an amount of $110.52 per week.
Father speculated that his wife could provide insurance for Child through
his employer at an amount of “somewhere about $50 to $60 a week.
Maybe a little more, maybe a little less.” Tr. p. 269-70.
The trial court found that Father’s weekly income, for child support purposes, is
$4,943.50, and that Mother’s weekly income, for child support purposes, is
$462. Additionally, the trial court observed that “[b]oth households enjoy
significant economic advantages for the minor child . . . from the parents’ and
step-parents’ contribution. The Court declines to impute income of either
stepparent to Mother or Father.” Appellant’s App. p. 15. In relevant part, the
trial court ordered that (1) Father’s child support obligation was increased to a
weekly amount of $443, (2) Father owed an increased amount of child support
retroactive to the date of the filing of the petition to modify in the amount of
$8,904, and (3) Mother was to continue to provide health insurance for Child.
Father now appeals.
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I. Amount of Father’s Child Support Obligation
[5] Father argues that the trial court erroneously calculated the amount of his child
support obligation. He contends that the trial court erred in calculating
Mother’s income and Father’s income and in ordering that Mother continue to
provide Child’s health insurance.
[6] On review, a trial court’s calculation of child support is presumptively valid.
Bogner v. Bogner, --- N.E.3d ---, 2015 WL 1944252, at *4 (Ind. 2015). When
reviewing an order modifying a party’s child support obligation, we will
consider only the evidence and reasonable inferences favorable to the judgment.
Id. We will set aside the trial court’s judgment only if it was clearly erroneous.
Id.
[7] Modification of a child support order is governed by Indiana Code section 31-
16-8-1(b), which provides as follows:
(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.
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In this case, Father does not contend that the modification itself was erroneous;
instead, he argues that the trial court erred in its calculations.
A. Calculation of Mother’s Income
[8] Father contends that the trial court erred in calculating Mother’s income.
Weekly gross income is the sum of actual income, potential income if a parent
is under employed, and imputed income based on “in kind” benefits. Indiana
Child Support Guideline 3A(1).
1. Imputation of Income
[9] First, Father argues that the trial court should have imputed Stepfather’s
income to Mother. The Commentary to the Child Support Guidelines
addresses this issue:
Whether or not income should be imputed to a parent whose living
expenses have been substantially reduced due to financial resources
other than the parent’s own earning capabilities is also a fact-sensitive
situation requiring careful consideration of the evidence in each case. It may
be inappropriate to include as gross income occasional gifts
received. However, regular and continuing payments made by a
family member, subsequent spouse, roommate or live-in friend that
reduce the parent's costs for rent, utilities, or groceries, may be the
basis for imputing income. The marriage of a parent to a spouse with
sufficient affluence to obviate the necessity for the parent to work may
give rise to a situation where either potential income or imputed
income or both should be considered in arriving at gross income.
Ind. Child Support Guideline 3A Commentary (d) (emphasis added). Our
Supreme Court has held that a trial court may, indeed, choose to impute a
spouse’s income to a parent in calculating that parent’s weekly gross income for
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the purpose of child support. Glass v. Oeder, 716 N.E.2d 413, 417-18 (Ind.
1999).
[10] While there is ample authority standing for the proposition that a trial court
may impute the income of a parent’s spouse, we have found none—and Father
directs us to none—that requires it. And indeed, as noted above, the
commentary to the Child Support Guidelines explicitly notes that this decision
is “fact-sensitive” and requires “careful consideration of the evidence in each
case.” Child Supp. G. 3A Cmt. (d). In this case, the trial court noted, and
considered, the income provided by both Mother’s and Father’s spouses, and
determined, under the facts of this case, that no imputation was warranted. We
see no basis in the record before us to conclude that the trial court abused its
discretion in this regard. Therefore, this argument is unavailing.
2. Evidence of In-Kind Benefits
[11] Next, Father argues that the trial court erred by excluding evidence related to
Stepfather’s income and whether that income should be imputed to Mother as
an in-kind benefit. Initially, we note that we have already concluded that the
trial court did not abuse its discretion in declining to impute Stepfather’s
income to Mother.
[12] In preparation for the hearing, Father prepared a document identified as
Respondent’s Exhibit S, which related to his calculation of Mother’s weekly
gross income. He prepared this document himself, and it admittedly contained
his own estimates of various figures based upon interrogatories, testimony, and
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matters outside of the evidence. Tr. p. 273-74. Mother objected to the
admission of this document based upon hearsay and speculation, and the trial
court sustained her objection.
[13] Father attempts to reframe the issue on appeal as one of relevance. It is readily
apparent, however, that the basis of the objection was hearsay and speculation
rather than relevance. Furthermore, the documents on which Father based his
calculations had already been admitted into evidence and were available for the
trial court’s review. In the end, although Exhibit S was not admitted into
evidence, Father was able to testify regarding the way in which he had
calculated Mother’s income. Therefore, we find no error on this basis, and
even if there had been error, it was harmless.
3. Credit for Child’s Health Insurance Premium
[14] Next, Father argues that the trial court erred by crediting Mother the amount of
Child’s health insurance premium. Father contends that because it is
Stepfather, rather than Mother, who actually pays this expense, it should not be
credited to Mother.
[15] The weekly cost of Child’s health insurance is undisputed. It is also undisputed
that Stepfather, rather than Mother, pays this cost when it is deducted from his
paycheck. We have already found above that it was not erroneous for the trial
court to decline to impute Stepfather’s income to Mother. In other words, it
was not erroneous for the trial court to treat Stepfather and Mother as separate
financial entities. But the trial court then changed course and elected to treat
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Stepfather and Mother as the same, or coexistent, financial entities for the
purpose of the cost of Child’s health insurance. We do not believe that this
inconsistency can stand.
[16] Had the trial court elected to impute Stepfather’s income to Mother, it would
have also made logical sense for it to credit Mother for Stepfather’s payment of
the health insurance premium, and there would have been no error. But having
decided not to impute that income to Mother, the trial court erred by changing
tack and crediting her for payments he had made. Under these circumstances,
we believe the trial court abused its discretion by crediting Mother for the cost
of Child’s healthcare premium. We reverse and remand with instructions to
recalculate the parties’ respective child support obligations with no credit to
Mother for the cost of Child’s healthcare premium. 1
B. Calculation of Father’s Income
[17] Next, Father argues that the trial court erroneously calculated his income for
the purpose of child support. Specifically, Father contends that the trial court
should have subtracted one-half of Father’s self-employment tax from his
income.
1
Father also argues that the trial court erred by ordering that Mother continue to provide Child’s health
insurance. Given our ruling on the issue of credit for the health insurance payments, we need not address
this argument. We note briefly, however, that Father did not file a petition to modify the parties’ existing
child support order, nor did he present evidence of “changed circumstances so substantial and continuing as
to make the terms [of the existing child support order] unreasonable[.]” Ind. Code § 31-16-8-1(b)(1).
Therefore, we find no error in the trial court’s ruling on this issue.
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[18] The Child Support Guidelines directly addresses this issue: “The self-employed
shall be permitted to deduct that portion of their FICA tax payment that
exceeds the FICA tax that would be paid by an employee earning the same
Weekly Gross Income.” Ind. Child Support Guideline 3A(2). The
Commentary elaborates:
The self-employed pay FICA tax at twice the rate that is paid by
employees. At present rates, the self-employed pay fifteen and thirty
one-hundredths percent (15.30%) of their gross income to a designated
maximum, while employees pay seven and sixty-five one-hundredths
percent (7.65%) to the same maximum. The self-employed are
therefore permitted to deduct one-half of their FICA payment when
calculating Weekly Gross Income.
Ch. Supp. G. 3A Cmt. (2)(a).
[19] In this case, the trial court did not deduct one-half of Father’s FICA payment
from his income. In arriving at its income calculation, however, the trial court
relied on Father’s own child support worksheet. Indeed, the trial court used
precisely the same calculations, and arrived at precisely the same result, as
Father did.
[20] If there was an error, therefore, it was an invited error. See Trabucco v. Trabucco,
944 N.E.2d 544, 551 (Ind. Ct. App. 2011) (holding, where husband argued that
the trial court erred in calculating his income for child support, that “Husband
invited the error by failing to present sufficient evidence of his actual income”).
But we find no error at all, inasmuch as the final income figure arrived at by the
trial court was well within the scope of the evidence before it. See, e.g., Eppler v.
Eppler, 837 N.E.2d 167, 173 (Ind. Ct. App. 2005) (holding that if the trial
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court’s child support income figure includes the income required by the Child
Support guidelines and falls within the scope of the evidence presented at the
hearing, the trial court’s determination is not clearly erroneous). Consequently,
we find no error on this basis.
II. Retroactive Child Support Amount
[21] Finally, Father argues that the trial court erred in determining the amount he
owes in retroactive child support. It is well established that “the trial court has
the discretionary power to make a modification for child support relate back to
the date the petition to modify is filed or any date thereafter chosen by the trial
court.” Hatmaker v. Hatmaker, 998 N.E.2d 758, 763 (Ind. Ct. App. 2013), trans.
denied.
[22] In this case, Mother filed her petition to modify the child support arrangement
on August 20, 2013. Before that date, Father’s child support obligation totaled
$1,000 per month, or approximately $231 per week. The trial court granted
Mother’s petition to modify, however, increasing Father’s child support
obligation to $443 per week. The issue, therefore, is the amount of additional
child support owed by Father dating back to August 20, 2013.
[23] Father claims that he presented evidence that at some point, he began
voluntarily paying an extra $100 per month in child support. Tr. p. 234-35.
Father offered no evidence of the date on which he began overpaying, nor did
he offer any documents to support his assertion. Moreover, Father
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acknowledges that he was required to—and did—pay for half of Child’s
extracurricular expenses, the cost of which has increased over the years.
[24] The trial court would have been within its discretion either to discount Father’s
unsupported testimony regarding an alleged overpayment or to determine that
the overpayment was intended to cover Father’s share of Child’s extracurricular
expenses. We see no basis to conclude that the trial court abused its discretion
in declining to credit Father for a child support overpayment of $100 per
month, and find no error in its calculation of the amount of retroactive child
support owed by Father.
[25] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions to recalculate (1) Mother’s income with no credit
for Child’s health insurance payment, (2) Father’s child support obligation
given the adjustment to Mother’s income, and (3) Father’s retroactive child
support owed given the adjustment to Father’s child support obligation.
Friedlander, J., and Crone, J., concur.
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