MEMORANDUM DECISION
Jun 30 2015, 8:49 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 ATTORNEYS FOR APPELLEE
Chad D. Wuertz Ryan H. Cassman
Wuertz Law Office, LLC Cathy M. Brownson
Indianapolis, Indiana Coots, Henke & Wheeler, P.C.
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of June 30, 2015
H.J., Court of Appeals Case No.
49A02-1412-JP-825
Melissa R. Jallow,
Appeal from the
Appellant-Petitioner, Marion Superior Court
The Honorable Michael D. Keele,
v. Judge
Cause No. 49D07-0712-JP-55541
William R. Fat-Anthony,
Appellee-Respondent.
Kirsch, Judge.
[1] Melissa R. Jallow (“Mother”) appeals the trial court’s order modifying the child
support obligation of William R. Fat-Anthony (“Father”) in this paternity
action. Mother raises several issues, which we consolidate and restate as:
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whether the trial court abused its discretion in modifying Father’s child support
obligation.
[2] We affirm.
Facts and Procedural History
[3] Mother and Father were never married, but share a child together, H.J.
(“Child”), born on November 2, 2007. Father’s paternity was established on
July 8, 2008, but no child support was ordered at that time. The case was re-
docketed on February 8, 2011 in order to determine child support. On August
24, 2011, the trial court established Father’s child support obligation to be
$283.00 per week and an additional $67.00 per week toward the arrearage,
which was determined to be $6,424.00.
[4] At an August 9, 2013 hearing, the trial court found Father in contempt for
failing to meet his child support obligation and ordered Father to pay Mother’s
attorney fees as of that date. Father made a few support payments following
this hearing, but still failed to meet his obligation. At a hearing held on
December 6, 2013, the trial court again found Father to be in contempt,
calculated a support arrearage, and issued a bench warrant for Father. On
January 27, 2014, the trial court ordered Father to serve thirty days in the
Marion County Jail or pay a purge bond of $5,000.00, which Father paid. The
trial court had previously entered a judgment against Father in the amount of
$8,785.89 for Mother’s attorney fees, and Mother’s counsel as judgment
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creditor filed a motion for proceedings supplemental and levy for personal
property.
[5] On March 5, 2014, Father filed a motion for a change of judge and a petition
for modification of child support. On March 10, 2014, Mother filed a motion
for prepayment of her attorney fees. On March 24, 2014, a special judge was
appointed for the case, and he ordered the parties to attend mediation, to which
Mother objected; the order was rescinded. On May 2, 2014, Mother’s counsel
filed a renewed motion for proceedings supplemental and levy for personal
property, and on May 15, 2014, Mother filed a renewed motion for prepayment
of attorney fees. The pending motions were set for hearing on June 26, 2014,
but the hearing was rescheduled several times until it was finally set for
September 5, 2014 for the determination of all issues except Father’s petition for
modification of child support.
[6] Because Father lives in Texas, on August 21, 2014, he filed a motion to appear
telephonically for the September 5 hearing, or in the alternative, to have the
modification of child support motion heard on the same date. The trial court
denied Father’s request to appear telephonically, but granted Father’s motion to
consolidate the child support matter with the other motions at the hearing.
Mother filed a motion to reconsider this decision, but the trial court denied her
motion.
[7] At the September 5 hearing, the trial court informed the parties what issues
were pending, including the Mother’s counsel’s motion for proceedings
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supplemental, Mother’s request for prepayment of attorney fees, and Father’s
petition to modify child support. The trial court asked Mother’s counsel if there
was anything additional counsel wanted to state regarding Mother’s motions.
Mother’s counsel declined and stated that Mother would rely on her motion,
but then went on to discuss the pending proceedings supplemental issue.
[8] During the hearing, Father testified that he was a pharmacist, who holds a
doctorate of pharmacy degree and has worked at Health Plus Pharmacy in
Mission, Texas since 2013, and that he earns $518.00 per week with no other
sources of income. Father filed a financial declaration, paystubs, and a
proposed child support obligation worksheet with the trial court. Father
testified that he and his wife had previously owned a business known as Valley
Scrubs and Medical Accessory, which was a part owner of Medical Mart and
DME, which was doing business as Health Plus Pharmacy, Father’s current
employer. However, Father stated that the business, Valley Scrubs and Medical
Accessory no longer existed, which “killed [his] ownership in Medical Mart
and DME.” Tr. at 45. He also testified that his wife works, he is in huge debt,
and that he has additional children and support obligations. Father additionally
stated that he and his wife discussed his prior failed business, and that by
maintaining his current employment, he may “get something out of it” in the
future. Id. at 63.
[9] Mother testified that she was employed as a registered nurse, earning $700.00
per week, and filed a financial declaration reflecting the same. Mother also
testified that she was a full-time student, and her hours had recently been cut,
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which both resulted in her earning less income than what she previously had
averaged. Mother was going back to school to become an advanced nurse
practitioner and hoped to improve her income after she graduated in December
2014 She stated she had voluntarily decided to go back to school to better her
financial circumstances.
[10] The trial court issued an order granting Father’s petition to modify child
support and calculating Father’s arrearage and the payments received. The trial
court modified Father’s support obligation to $66.00 per week and found his
remaining arrearage to be $1,880.46. The trial court did not impute any income
to either party and, while identifying Father’s income as far lower than would
be expected given his profession, the court found his current earnings as
indicated on his financial declaration and tax return to be credible. The trial
court noted that Father testified about his hopes that his current employment
will pay off in the future and that Mother also chose to decrease her income in
order to attend school and hopefully earn more in the future. It also discussed
that both parties were earning less than they were at the time of the original
support order. The trial court did not award Mother attorney fees.
[11] Mother filed a motion to correct error on October 14, 2014. In her motion, she
argued that the trial court erred when it failed to rule on her motion for
prepayment of attorney fees and when it scheduled Father’s petition to modify
child support at the same hearing as her request for prepayment of attorney
fees. The trial court denied the motion to correct error. Mother now appeals.
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Discussion and Decision
[12] A trial court’s decision on a motion to correct error comes to us cloaked with a
presumption of correctness, and the appellant has the burden of showing an
abuse of discretion. Faulkinbury v. Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct.
App. 2015) (citing Cox v. Matthews, 901 N.E.2d 14, 21 (Ind. Ct. App. 2009),
trans. dismissed). An abuse of discretion will be found when the trial court’s
action is against the logic and effect of the facts and circumstances before it and
the inferences that may be drawn therefrom. Id.
[13] Initially, Mother argues that the trial court abused its discretion when it
continued the hearing on her motion for prepayment of attorney fees and
consolidated the hearing on her motion with the hearing on Father’s motion to
modify child support. Mother contends that this was an abuse of discretion
because the trial court’s actions were in violation of certain local rules for
Marion County civil courts. She claims that, under the local rules, she should
have been allowed fifteen days to respond to Father’s motion to consolidate the
hearings, and because she was not given that opportunity to respond, the trial
court violated its local rules.
[14] Mother raises this argument regarding the violation of local rules for the first
time on appeal. After the trial court issued its order consolidating Father’s
motion for hearing at the same hearing as Mother’s pending motions, Mother
filed a motion to reconsider. However, she did not cite to the local rule or raise
its applicability in her motion. Additionally, on the day of the hearing, when
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given an opportunity argue her motion, she did not raise the local rule’s
applicability. Further, Mother filed a motion to correct error after the trial
court’s ruling and, again, did not raise the local rule in her argument. We,
therefore, find that Mother’s argument is waived because she failed to raise it at
trial and only raises it for the first time before this court. See Stainbrook v. Low,
842 N.E.2d 386, 396 (Ind. Ct. App. 2006) (concluding that when an appellant
raises an issue for the first time on appeal, the issue is waived for purposes of
appellate review), trans. denied.
[15] Mother also asserts that the trial court abused its discretion when it failed to
rule or to schedule a meaningful hearing on her motion for prepayment of
attorney fees. Although Mother contends that the trial court did not conduct a
meaningful hearing on her motion, the record shows that her motion was to be
heard at the September 5, 2014 hearing along with Mother’s motion for
proceedings supplemental and Father’s petition to modify child support. At the
start of the hearing on September 5, the trial court inquired of Mother’s attorney
as to whether Mother had any argument to add to her motions. Tr. at 5.
Mother’s counsel declined and indicated that Mother would rely on her filed
motions and then commenced to discuss the proceedings supplemental issues.
Id. at 5-7. Therefore, during the September 5, hearing, Mother had an
opportunity to argue her motion, but failed to do so.
[16] Mother also argues that the trial court abused its discretion in not ruling on her
motion for prepayment of attorney fees. Although our review of the record
does not reveal that the trial court ever issued an order denying Mother’s
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motion, we find the issue moot as the case has now concluded. See Dempsey v.
Dep’t of Metro. Dev. of City of Indianapolis, 953 N.E.2d 1132, 1136 (Ind. Ct. App.
2011) (“[W]e have determined that an issue is moot when the principal
questions in issue have ceased to be matters of real controversy between the
parties.”). Further, we do not find Mother was prejudiced by not being allowed
to conduct discovery as she asserts, because the failure to rule on her motion
did not stop her from conducting discovery. She could have still sought
discovery from Father and later request that Father be responsible for her
accrued attorney fees. We do not find any abuse of discretion by the trial court.
[17] Mother appeals the modification of Father’s child support obligation following
the denial of a motion to correct error. We review the denial of a motion to
correct error for an abuse of discretion. Faulkinbury, 28 N.E.3d at 1122. In
reviewing the trial court’s decision regarding the modification of child support,
we reverse only for an abuse of discretion. Holtzleiter v. Holtzleiter, 944 N.E.2d
502, 505 (Ind. Ct. App. 2011). An abuse of discretion occurs when the decision
is clearly against the logic and effect of the facts and circumstances before the
court, including any reasonable inferences therefrom. Id.
[18] Indiana Code section 31-16-8-1 provides in pertinent part that child support
may be modified only:
(1) upon a showing of changed circumstances so substantial and
continuing as to make the terms unreasonable; or
(2) upon a showing that:
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(A) a party has been ordered to pay an amount in child support
that differs by more than twenty percent 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 months before the petition requesting modification
was filed.
Ind. Code § 31-16-8-1(b). Appellate courts give considerable deference to the
findings of the trial court in family law matters, including findings of “changed
circumstances” within the meaning of Indiana Code section 31-16-8-1.
MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). “Trial courts must
exercise judgment, particularly as to credibility of witnesses, and we defer to
that judgment because the trial court views the evidence firsthand and we
review a cold documentary record.” Id. at 941. Therefore, to the extent
credibility or inferences are drawn, we give the trial court’s determinations
substantial weight. Id.
[19] Mother argues that the trial court abused its discretion when it modified
Father’s child support obligation. She contends that, because Father has a
doctorate of pharmacy degree, he is voluntarily underemployed and is working
for a wage far less than he is capable of earning while helping to grow a
business in which he owns no interest. Mother asserts that the trial court
should have imputed potential income to him when calculating his child
support obligation.
[20] The trial court enjoys wide discretion in imputing income to ensure that the
child support obligor does not evade his or her support obligation. Sexton v.
Sedlak, 946 N.E.2d 1177, 1188 (Ind. Ct. App. 2011) (citing Apter v. Ross, 781
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N.E.2d 744, 761 (Ind. Ct. App. 2003), trans. denied), trans. denied. Regarding
potential income, the Indiana Child Support Guidelines provide in pertinent
part:
If a court finds a parent is voluntarily unemployed or underemployed
without just cause, child support shall be calculated based on a
determination of potential income. A determination of potential
income shall be made by determining employment potential and
probable earnings level based on the obligor’s work history,
occupational qualifications, prevailing job opportunities, and earnings
levels in the community.
Ind. Child Support Guideline 3(A)(3).
[21] In this case, the evidence presented at the hearing showed that Father had been
employed as a pharmacist at Health Plus Pharmacy in Mission, Texas since
2013 and that he earned $518.00 per week and had no other sources of income.
Father filed his financial declaration, paystubs, and proposed child support
obligation worksheet, which all reflected this income. The trial court heard
evidence regarding Father’s past business interests, and Father testified that he
no longer had an interest in the business. Father testified that his wife worked,
that he had substantial debt, and that he had additional children and support
obligations. Father also told the court that he and his wife discussed his prior
failed businesses and concluded that, by staying with his current employment,
he may “get something out of it” in the future. Id. at 63.
[22] Mother testified at the hearing that she was employed as a registered nurse and
earned $700.00 per week and filed a financial declaration, reflecting the same.
She also stated she was a full time student and studying to become an advance
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nurse practitioner. Because of her student status, Mother was making less at
the time of the hearing than she had averaged in the past, but she hope that,
after graduating in December 2014, she would improve her income. She further
testified that she had voluntarily gone back to work to better her financial
circumstances.
[23] In its order modifying child support, the trial court specifically stated that
Father’s income was “far lower than would be expected given his chosen
occupation,” but found his current income credible based on his financial
declaration and his tax return. Appellant’s App. at 283. The trial court further
referenced Father’s testimony that he was maintaining his current employment
because he hoped it would pay off in the future, and that Mother had also
chosen to lower her income to attend school with the hope of earning more
income. Id. Additionally, the trial court noted the testimony of both parties
that they were earning less than at the time of the original support order. Id.
The evidence presented supported the trial court’s determination. Mother’s
arguments are merely requests for this court to reweigh the evidence, which we
cannot do. MacLafferty, 829 N.E.2d at 941. The trial court had the opportunity
to hear the evidence presented at the hearing and to observe the witnesses and
make a credibility determination based on its observations; we defer to that
judgment because the trial court viewed the evidence firsthand and we only
review a cold documentary record. Id. We, therefore, conclude that the trial
court did not abuse its discretion in not imputing income to Father and in
modifying Father’s child support obligation.
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[24] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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In the Matter of the Paternity of H.J., Melissa R. Jallow v. William R. Fat-Anthony (mem. dec.)
Combined Opinion