MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Oct 30 2020, 9:52 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nathan D. Hoggatt STATE OF INDIANA
Fort Wayne, Indiana Curtis T. Hill, Jr.
Attorney General of Indiana
Monika Prekopa Talbot
Aaron T. Craft
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert E. West, Jr., October 30, 2020
Appellant-Respondent, Court of Appeals Case No.
20A-DR-1145
v. Appeal from the Wells Superior
Court
Anicka M. West and State of The Honorable Chad E. Kukelhan,
Indiana by the IV-D Prosecutor Special Judge
of Wells County,1 Trial Court Cause No.
Appellees-Petitioners. 90D01-0611-DR-85
1
Anicka M. West did not file a brief or otherwise participate on appeal; however, pursuant to Ind(iana)
Appellate Rule 17(A), “A party of record in the trial court . . . shall be a party on appeal.”
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Mathias, Judge.
[1] Robert West, Jr. (“Father”) appeals the Wells Superior Court’s order denying
his motion to modify his child support obligation. On appeal, Father claims
that the trial court abused its discretion when it denied his petition, arguing that
he is unable to maintain employment due to physical limitations.
[2] We affirm.
Facts and Procedural History
[3] Father and Anicka West (“Mother”) (collectively “Parents”) have two children:
fourteen-year-old D.W. and sixteen-year-old A.W. Parents are married but
have been separated for almost fourteen years. In November 2018, Parents
entered into a joint stipulation establishing Father’s child support obligation in
the amount of $150.00 per week. This amount deviated from the amount
calculated on Father’s child support worksheet. But Parents agreed to lower
Father’s child support obligation because Father had obtained a lower-paying
job, and Parents were unsure of the number of overnight visits Father would
have with the children.
[4] On January 31, 2020, Father filed a petition to modify his child support
obligation. In the petition, Father alleged that he was no longer able to work
because he is physically incapacitated and that his obligation should be reduced
because he regularly exercises overnight parenting time with one of the two
children.
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[5] The trial court held a hearing on Father’s petition to modify on May 18, 2020.
Father was represented by counsel, and Mother proceeded pro se. The Title IV-
D Prosecutor participated in the hearing as well.
[6] At the hearing, Father testified that on the date the joint stipulation was filed,
he was working full-time at a small used car lot in Bluffton, Indiana. Father
stated that he left his employment in December 2018 due to physical
limitations. Father testified that he suffers from migraines, several herniated
discs in his spine and neck, and arthritis. Tr. p. 5. Due to his neck and back
pain, Father cannot perform physical labor. Father stated he cannot walk long
distances, bend down, or lift things. When he suffers from migraines, he stays
in bed the entire day. Tr. p. 13.
[7] Father stated he receives medical treatment from an orthopedic doctor, a
neurologist, a chiropractor and his family doctor. The only evidence Father
submitted to the trial court to support his claims were two documents from
Father’s chiropractor stating that he is unable to work due to his back and neck
pain. Ex. Vol., Respondent’s Exs. A & B.
[8] Father applied for social security disability, but his application was denied.
Father testified that a disability attorney informed him that he will not currently
qualify for social security disability. Tr. p. 8. However, he plans to apply for
social security disability in the future if he is still unable to work. Father stated
that he currently has no income. His girlfriend, with whom he has an eight-
month-old child, has been paying his child support each month.
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[9] Between August 2019 and April 2020, Father exercised seventy-three
overnights with at least one child. At the end of April 2020, Father and the
children had a heated argument, and the children have not returned for
overnight visitation since that time.
[10] On the child support worksheet Father prepared and submitted to the trial
court, he imputed minimum wage income to himself and a parenting time
credit of ninety-six to 100 overnights. Father calculated that his modified child
support obligation would be $33 per week. Father also requested that an order
modifying his child support be retroactive to the date of filing.
[11] Parents’ children testified that they do not intend to stay at their Father’s house
overnight anytime in the near future due to the argument they had at the end of
April 2020. Tr. pp. 16, 21–22. The children stated that Father makes money by
selling used furniture. The children provided pictures of a barn full of furniture
that Father purchased or obtained for free with the intent of reselling the items.
Tr. pp. 17, 22; Ex. Vol., Petitioner’s Ex. 1, 2, 3, & 4. D.W. testified that Father
helps load the furniture even though he complains of back pain. Tr. p. 18.
Mother also testified that Father has been buying and selling furniture for
several years. Tr. p. 24. Father claimed the furniture belonged to his girlfriend’s
parents and he makes very little money selling it. Tr. pp. 26–27.
[12] The trial court, after considering the parties’ evidence and argument, orally
denied Father’s petition to modify his child support obligation. The court stated
that Father’s testimony was not credible. Tr. pp. 30–31. On May 22, 2020, the
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trial court issued a written order denying Father’s petition to modify his child
support obligation. Father now appeals. Mother did not file a brief, but the
State filed an Appellee’s Brief.
Standard of Review
[13] Our supreme court has expressed a “preference for granting latitude and
deference to our trial judges in family law matters.” In re Guardianship of M.N.S.,
23 N.E.3d 759, 765–66 (Ind. Ct. App. 2014). Appellate deference to the
determinations of trial court judges, especially in domestic relations matters, is
warranted because of their unique, direct interactions with the parties face-to-
face, often over an extended period of time. Best v. Best, 941 N.E.2d 499, 502
(Ind. 2011). Because trial courts are tasked with assessing credibility and
character through both factual testimony and intuitive discernment, trial judges
are in a superior position to ascertain information and apply common sense,
particularly in the determination of the best interests of the child involved. Id.
Therefore, we neither reweigh the evidence nor reassess witness credibility, and
we view the evidence most favorably to the judgment. Id.
[14] We also note that Parents did not request, and the trial court did not issue
findings of fact and conclusions of law pursuant to Ind. Trial Rule 52; therefore,
the general judgment standard applies. We may affirm “a general judgment on
any theory supported by the evidence adduced at trial.” Miller v. Carpenter, 965
N.E.2d 104, 108–09 (Ind. Ct. App. 2012).
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Discussion and Decision
[15] Father argues that the trial court abused its discretion when it denied his
petition to modify his child support obligation for three reasons: 1) his health
condition constitutes a new and substantial circumstance impacting his ability
to maintain employment; 2) he has a new child; and 3) he was exercising
significant parenting time with at least one of his children. Indiana Code section
31-16-8-1 governs modification of child support orders and provides in relevant
part:
(a) Provisions of an order with respect to child support . . . 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.
[16] Father requested a child support modification because he currently has no
income and argues he is not able to work due to his physical condition.
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Therefore, Father claims that he presented evidence of changed circumstances
so substantial and continuing as to make the terms of the current child support
order unreasonable and that the amount he is ordered to pay differs by more
than twenty percent from the amount he would be ordered to pay by applying
the child support guidelines. Because the trial court denied Father’s petition, the
court necessarily concluded that Father is voluntarily unemployed and imputed
income to him.
[17] We review a trial court’s decision concerning imputation of potential income
for an abuse of discretion. Miller v. Miller, 72 N.E.3d 952, 955 (Ind. Ct. App.
2017). The Indiana Child Support Guidelines (“the Guidelines”) provide,
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). “Potential income may be determined if
a parent has no income, or only means-tested income, and is capable of earning
income or capable of earning more.” Id. cmt. 2c.
[18] The only evidence supporting Father’s claims concerning his physical condition
and ability to maintain employment was his own self-serving testimony and two
notes from his chiropractor. D.W. testified that although Father complains of
back pain, he is still able to sell furniture and load it into vehicles. Tr. p. 18.
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Moreover, Father’s application for social security disability was denied, and he
admitted that an attorney told him he does not currently qualify for social
security disability. Tr. p. 8. After considering the evidence presented, the trial
court concluded that Father’s testimony concerning his ability to work was not
credible. Tr. pp. 30–31. Our court will not reweigh the trial court’s credibility
determination on appeal. See Best, 941 N.E.2d at 502.
[19] For all of these reasons, we conclude that the trial court did not abuse its
discretion when the court imputed income to Father after determining that
Father is voluntarily unemployed.2
[20] Next, we consider Father’s arguments concerning his subsequently born child
and parenting time credit for overnight visitation. In his brief, Father does not
argue that either of these circumstances meets the threshold for modification
enumerated in Indiana Code section 31-16-8-1(b).
[21] The State provided calculations in its brief utilizing the parties’ 2018 stipulated
child support worksheet to demonstrate that these circumstances would not
cause Father’s child support obligation to differ by more than twenty percent.
See Appellee’s Br. at 13–15. The State also notes that in November 2018 the
2
In support of his argument that his proposed child support obligation differs by more than twenty percent of
the current obligation, Father relies on his child support worksheet and emphasizes that Mother did not
submit her own worksheet. In his worksheet, Father imputed minimum wage income to himself. Mother
disputed Father’s claim that he had no income and was unable to maintain employment. She desired to
maintain the support order established in November 2018. Therefore, Mother had no reason to submit a
proposed child support worksheet. Father’s worksheet does not support his claim that a child support
modification is warranted because the trial court concluded that Father’s claim that he is unable to work was
not credible.
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parties agreed to deviate from the guideline amount, lowering Father’s child
support from $186.57 per week to $150.00 per week. One reason for the
deviation was the undetermined number of days of overnight parenting time
Father would exercise with the children. Finally, the children do not anticipate
having overnight visitation with Father at any time in the near future.
[22] For all of these reasons, Father did not prove that either circumstance warrants
a modification of his child support obligation.
Conclusion
[23] Father’s arguments are simply a request to reweigh the evidence and credibility
of the witnesses. We therefore affirm the trial court’s denial of Father’s petition
to modify his child support obligation.
[24] Affirmed.
Bradford, C.J., and Najam, J. concur.
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