C.M. v. D.M.

BAKER, Chief Judge,

dissenting in part.

Although I concur with the result reached by the majority on the abatement issue, I respectfully dissent from its conclusion regarding the semiannual windfall bonuses. I acknowledge the commentary following Child Support Guideline 3(A):

b. Overtime, Commissions, Bonuses and Other Forms of Irregular Income. There are numerous forms of income that are irregular or nonguaranteed, which cause difficulty in accurately determining the gross income of a party. Overtime, commissions, bonuses, period-ie partnership distributions, voluntary extra work and extra hours worked by a professional are all illustrations, but far from an all-inclusive list, of such items. Each is includable in the total income approach taken by the Guidelines, but each is also very fact-sensitive.
Each of the above items is sensitive to downturns in the economy. The fact that overtime, for example, has been consistent for three (8) years does not guarantee that it will continue in a poor economy. Further, it is not the intent of the Guidelines to require a party who has worked sixty (60) hour weeks to continue doing so indefinitely just to meet a support obligation that is based on that higher level of earnings. Care should be taken to set support based on dependable income, while at the same time providing children with the support to which they are entitled.
When the court determines that it is not appropriate to include irregular income in the determination of the child support obligation, the court should express its reasons. When the court de*1270termines that it is appropriate to include irregular income, an equitable method of treating such income may be to require the obligor to pay a fixed percentage of overtime, bonuses, etc., in child support on a periodic but predetermined basis (weekly, bi-weekly, monthly, quarterly) rather than by the process of determining the average of the irregular income by past history and including it in the obligor's gross income calculation.
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Judges and practitioners should be innovative in finding ways to include income that would have benefited the family had it remained intact, but be receptive to deviations where reasons justify them....

Child Supp. G. 3(A) emt. 2(b). I believe that this provision was intended to apply to income such as Father's regular semiannual bonuses. That type of income is not guaranteed but is relatively dependable and the parties are able to predict the amount of that income with sufficient accuracy. Here, for example, Father's regular semiannual bonuses averaged approximately $20,000 apiece. Under these circumstances, it makes sense to apply the above tenets and fold the income into Father's child support obligation, as the trial court did.

The windfall bonuses, on the other hand, occur non-regularly-approximately every two years-and in varying amounts. I do not believe that it would have been feasible for the trial court to have attempted to predict the amount of future windfall bonuses with any accuracy; therefore, I believe that the trial court was correct to forego the inclusion of those bonuses in its calculation of Father's child support.

Furthermore, in the event that Father does receive these bonuses in the future and Mother would like them to be taken into account in a recalculation of Father's child support obligation, she would, indeed, be seeking a modification of the child support order and be bound to establish a 20% change before she is entitled to that modification. I.C. § 31-14-11-8(2). I believe that the trial court crafted a clever order that would have spared Mother the expense of drafting and filing a petition to modify, and I believe that rather than reversing on this issue, we should be applauding the trial court for following the Guidelines' recommendation that courts attempt to be innovative when possible. Therefore, I dissent from the result reached by the majority on the issue of the windfall bonuses. In all other respects, I concar in full.