ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Bryan Lee Ciyou Michael Cheerva
Indianapolis, Indiana Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
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No. 49S04-0409-CV-00429
DONNA J. MACLAFFERTY,
Appellant (Respondent below),
v.
WILLIAM P. MACLAFFERTY,
Appellee (Petitioner below).
_________________________________
Appeal from the Marion County Superior Court, No. 49D03-0212-DR-2054
The Honorable Patrick McCarty, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0309-CV-491
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June 28, 2005
Sullivan, Justice.
The trial court reduced William P. MacLafferty’s child support obligation by approxi-
mately 14% after Donna J. McLafferty, the custodial parent of their two children, obtained full-
time employment and thereby increased her weekly income by $375. Because the increase in her
income is extremely modest compared to his income, we find that requirements set by the Legis-
lature for modifying the terms of a prior child support order—a showing of changed circum-
stances “so substantial and continuing as to make the terms unreasonable”—have not been met.
Background
The marriage of William P. MacLafferty (“Father”) and Donna J. MacLafferty
(“Mother”) was dissolved on June 30, 1995. Physical custody of the couple’s two children was
awarded to Mother. Since then, Mother and Father have been back to court a number of times
with disputes over child support, parenting time, and other issues. In the proceeding immedi-
ately prior to the litigation at hand, Father’s prior child support obligation of $406 per week was
modified by court order dated April 17, 2002, to $364 per week plus six percent of any bonus
income earned.
Father filed a petition to modify the April 17, 2002, order on October 28, 2002, request-
ing that his support obligation be decreased because Mother had obtained full-time employment,
and her income had increased. According to the trial court, obtaining full-time employment
caused Mother’s income for child support purposes to increase from $324 per week ($16,848
annualized) to $709 ($36,868 annualized). Father’s income for child support purposes also in-
creased during this time period, from $2,287 per week ($118,924 annualized) to $2,407
($125,164 annualized); none of these amounts include bonuses. 1
Father’s petition also sought changes in parenting time and the treatment of the children’s
summer camp expenses and requested that Mother be directed to comply with various provisions
of prior court orders concerning parenting time.
After a hearing on April 14, 2003, the court granted Father’s petition on July 10, 2003.
The court’s order reduced Father’s child support obligation to $313 per week (plus 6% of any
bonus income earned), a 14% reduction from the previous amount, and granted Father the other
relief he sought with respect to parenting time (including the directives to Mother relating to
compliance) and children’s summer camp expenses.
1
The amounts set forth represent income calculated in accordance with the Indiana Child Support Guide-
lines and may differ from actual income because of certain adjustments required by the Guidelines. An-
nualized amounts are the weekly income amounts multiplied by 52.
2
Mother appealed, but the Court of Appeals affirmed. MacLafferty v. MacLafferty, 811
N.E.2d 450, 454 (Ind. Ct. App. 2004). Mother then sought, and we granted, transfer. 822
N.E.2d 977.
Discussion
Our review of the support modification order at issue here is controlled by Indiana Code
Section 31-16-8-1. In relevant part, the statute provides:
Provisions of an order with respect to child support . . . may be modified or re-
voked. . . . [M]odification may be made only:
(1) upon a showing of changed circumstances so substantial and continu-
ing 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
set.
Ind. Code § 31-16-8-1 (2004). While the statute presents alternative methods of seeking modifi-
cation—compliance with Subsection (1) or, in the alternative, compliance with Subsection (2)—
only Subsection (1) is available to Father here. This is because the amount that Father would be
ordered to pay applying the Indiana Child Support Guidelines, Ind. Child-Support Guideline 3
(West 2003), differed by less than 20% (in fact, as noted above, only 14%). 2
2
Subsection (2)(B) requires that the order requested to be modified (in this case, the April 17, 2002, or-
der) to have been issued “at least twelve (12) months before the petition requesting modification was set.”
As noted, Father’s petition here was filed October 29, 2002, and was set for trial on April 14, 2003; the
trial court’s order was issued July 10, 2003. Because of the failure to meet the 20% requirement of Sub-
section (1)(A), we do not address whether the 12-month requirement of Subsection (1)(B) was met. See
Harris v. Harris, 800 N.E.2d 930, 937 (Ind. Ct. App. 2003) (discussing effect of “premature filing” of a
petition to modify child support), transfer denied.
3
Father had the burden here of establishing changed circumstances so substantial and con-
tinuous as to make the terms of the April 17, 2002, order unreasonable. Scoleri v. Scoleri, 766
N.E.2d 1211, 1215 (Ind. Ct. App. 2002). The trial court found that burden satisfied and ordered
a reduction in Father’s support obligation as well as granting the other relief requested. Father
now characterizes Mother’s appeal as a “thinly veiled attempt to convince this court to reweigh
the evidence and to substitute its judgment for that of the trial court.” Appellee’s Resp. to Pet.
Trans. at 1.
It is certainly true that appellate courts give considerable deference to the findings of the
trial court in family law matters, including findings of “changed circumstances” within the mean-
ing of Indiana Code section 31-16-8-1. Whether the standard of review is phrased as “abuse of
discretion” or “clear error,” 3 this deference is a reflection, first and foremost, that the trial judge
is in the best position to judge the facts, to get a feel for the family dynamics, to get a sense of
the parents and their relationship with their children—the kind of qualities that appellate courts
would be in a difficult position to assess. Hon. Denise R. Johnson, Address at the 2004 Appel-
late Judges Summit (Nov. 13, 2004). Secondly, appeals that change the results below are espe-
cially disruptive in the family law setting. Id. And third, the particularly high degree of discre-
tion afforded trial courts in the family law setting is likely also attributable in part to the “fluid”
standards for deciding issues in family law cases that prevailed for many years. Id. (citing Mau-
rice Rosenberg, Appellate Review of Trial Court Discretion, 179 F.R.D. 173, 175 (1978)).
The third of these reasons has largely fallen by the wayside as the Legislature and this
Court have promulgated a series of statutes, rules, and guidelines—standards that bring consis-
tency and predictability to the many family law decisions. See Johnson, supra. But, the impor-
tance of first-person observation and avoiding disruption remain compelling reasons for defer-
ence.
We recognize of course that trial courts must exercise judgment, particularly as to credi-
bility of witnesses, and we defer to that judgment because the trial court views the evidence
3
There are cases from both this Court and the Court of Appeals that phrase the standard of review each
way. See, e.g., Glass v. Oeder, 716 N.E.2d 413, 416 (Ind. 1999) (clear error); Meehan v. Meehan, 425
N.E.2d 157 (Ind. 1981) (abuse of discretion); MacLafferty, 811 N.E.2d at 452 (clear error); Burke v.
Burke, 809 N.E. 2d 896 (Ind. Ct. App. 2004) (abuse of discretion).
4
firsthand and we review a cold documentary record. Thus, to the extent credibility or inferences
are to be drawn, we give the trial court’s conclusions substantial weight. But to the extent a rul-
ing is based on an error of law or is not supported by the evidence, it is reversible, and the trial
court has no discretion to reach the wrong result.
This distinction applies with particular force in a case like this. We rely on the trial
court’s determination of the respective incomes of the parties, for example, but the determination
of whether or not the change in circumstances asserted is “so substantial and continuing” as to
render the prior child support order’s terms “unreasonable” is, at minimum, a mixed question of
law and fact. To the extent it is a question of law, it is the duty of the appellate court to give it de
novo review—and doing so promotes the values of consistency, predictability, and enunciation
of standards that curb arbitrariness. See Johnson, supra.
We begin this review with some reflections on the legislative history of Indiana Code
section 31-16-8-1. From its original enactment in 1973 until 1997, 4 the statute consisted only of
the substance of current subsection (1), i.e., it permitted modifications only where the requisite
“changed circumstances” showing was made. It had long been held that this provision demon-
strated the Legislature’s determination to limit the “vexatious litigation which accompanies the
dissolution of a marriage.” Lankenau v. Lankenau, 365 N.E.2d 1241, 1244 (Ind. Ct. App. 1977).
Effective July 1, 1997, the Legislature added Subsection (2), thereby providing an entitlement to
modification where the two specific, bright-line requirements—the 20% change and 12-month
time period—have been met. 1997 Ind. Acts 1 § 8.
Our interpretation of the Legislature’s action in 1997 is that it wanted to provide a bright-
line for parents and for courts as to when a parent would be entitled to modification in his or her
child support obligation solely on grounds of change in income. The Legislature seems to be
saying that if more than a year had passed since the last modification, and one parent’s income
has changed so much that his or her obligation under the Child Support Guidelines would change
4
The statute was originally codified as Indiana Code section 31-1-11.5-17 (a), enacted by 1973 Ind. Acts
297 § 1, and provided that modification could be “made only upon a showing of changed circumstances
so substantial and continuing as to make the terms unreasonable.” It was recodified as Indiana Code sec-
tion 31-16-8-1 in 1997 with the provisions contained in Subsection (2).
5
by 20%, a parent is entitled to modification. 5 The Legislature left in place the opportunity for a
parent to request modification at any time and for any reason so long as—but only if—the parent
could show changed circumstances “so substantial and continuing as to make the terms [of the
prior order] unreasonable.” Ind. Code § 31-16-8-1(1) (2004).
In addition to providing a bright-line test for a parent who seeks modification solely on
grounds of change in income, it seems to us that, as a practical matter, the Legislature has effec-
tively established a bifurcated standard for modification, Subsection (2) covering situations
where a parent seeks modification solely on grounds of change in income and Subsection (1)
covering all other situations (including situations alleging a change in income and one or more
other changes). It is true that, as a matter of pure logic, a parent could seek modification solely
on grounds of change in income under Subsection (1)—indeed, Father does so here. But we do
not believe that the Legislature would consider a change in circumstances standing alone (i.e.,
without any other change in circumstances) that would change one parent’s child-support pay-
ment by less than 20% to be “so substantial and continuing as to make the terms [of the prior or-
der] unreasonable.” Indeed, it is hard to see the reason the Legislature would have enacted sub-
section (2) at all if a parent could receive a modification under Subsection (1) where the only
changed circumstance alleged would change one parent’s payment by less than 20%.
Nevertheless, we do not hold that a modification may never be made be made under sub-
section (1) where the changed circumstance alleged is a change in one parent's income that only
changes one parent's payment by less than 20%. There may be situations where a variety of fac-
tors converge to make such a modification permissible under the terms of the statute. While we
do not find this case to be such a situation, we do not foreclose such a possibility.
The trial court here concluded “that Mother's change to full-time employment and the in-
crease in her income attributable thereto constitutes a substantial and continuing change of cir-
cumstances sufficient to find that the previous Court Order regarding Support and Visitation is
now unreasonable.” Trial Ct. Order at 11. Appellate review is facilitated when trial courts state
5
The result might well be affected by prior agreements of the parties. See Hay v. Hay, 730 N.E.2d 787
(Ind. Ct. App. 2000).
6
the reasons for their decisions but the trial court here did not give any explanation as to why it
considered this change to have been “so substantial” (or, for that matter, “continuing”) that the
terms of its previous order had been rendered unreasonable. We do not find it to have been so.
Mother’s income did increase as a result of her becoming employed on a full-time basis, but the
increase only amounted to $375 per week 6 during a period of time when Father’s weekly income
increased $120 (not including any bonuses that he earned of which 6% were to be paid in child
support). Even after the change here, Mother’s income was quite modest compared to Father’s:
Father’s income (excluding bonuses) was approximately 3-1/4 times that of Mother. We hold
that the change alleged here was not so substantial as to render the terms of the prior order unrea-
sonable.
Father identifies two cases that he says stand for the proposition “that changes in the rela-
tive financial resources of both parents alone may be sufficient to modify a child support order.”
Harris v. Harris, 800 N.E.2d 930, 938 (Ind. Ct. App. 2003), transfer denied, 812 N.E.2d 798
(2004). That proposition is true, of course, only when the changes are so substantial and
continuing as to render the terms of the prior support order unreasonable. The two cases Father
cites each involve changes far more substantial than the one before us. In the first, the changed
circumstances included the facts that Father had lost a very lucrative job; successfully sued his
former employer; and relocated to Colorado where he secured another very lucrative position. In
addition, Mother, who apparently did not have regular employment at the time the prior support
order was entered, had secured a regular position, working out of her home, for an annual salary
of $90,000 (plus a $500 monthly car allowance). Id. In the second case, the changed circum-
stances included the facts that Mother had become employed on a full-time basis “significantly”
increasing her income while Father’s income had significantly declined. In addition, of the cou-
ple’s three children in Mother’s custody at the time the prior support order was entered, one had
become emancipated and another lived with Father. Kirchoff v. Kirchoff, 619 N.E.2d 592, 596
(Ind. Ct. App. 1993). We find no support for Father’s claim in either of these cases.
6
Mother vigorously contends that the increase was only $357 per week, not $375. We defer to the trial
court on this finding.
7
Conclusion
Having previously granted transfer, thereby vacating the opinion of the Court of Appeals,
we now reverse the trial court; vacate the provisions of its order dated July 10, 2003, reducing
Father’s child support payment; and order that Father’s child support payment be restored to
$364 per week (the amount established by the trial court in its April 17, 2002, order), effective
July 10, 2003. We further direct the trial court to set this matter for hearing within 90 days of the
certification of this opinion by the clerk to consider (1) an appropriate schedule for Father to pay
the amount that has accrued as a result of this decision, see Indiana Child Support Guideline 1
Commentary 246 (West 2005), and (2) any additional changes to its order dated July 10, 2003,
made necessary or advisable by this decision or other factors.
Shepard, C.J., and Boehm, and Rucker, JJ., concur. Dickson, J., dissents.
8