Abouhalkah v. Sharps

MATHIAS, Judge,

dissenting.

I respectfully dissent.

When reviewing a denial of a petition to modify child support, we apply a clearly erroneous standard. Scoleri v. Scoleri, 766 N.E.2d 1211, 1215 (Ind.Ct.App.2002) (citing Beardsley v. Heazlitt, 654 N.E.2d 1178, 1180 (Ind.Ct.App.1995)). We will only reverse a decision regarding the modification of child support when it is clearly against the logic and effect of the facts and cireumstances that were before the trial court. Id. We do not reweigh the evidence or judge the credibility of the witnesses upon review; rather, we only consider the evidence most favorable to the judgment and the reasonable inferences to be drawn therefrom. Scoleri, 766 N.E.2d at 1215 (citing Bower v. Bower, 697 N.E.2d 110, 113 (Ind.Ct.App.1998)). The petitioner bears the burden of proving a substantial change in cireumstances that justifies a modification in child support. Weiss v. Frick, 693 N.E.2d 588, 590 (Ind.Ct.App.1998), trans. denied. This standard of review is highly deferential to the trial court's ability to weigh the evidence and to judge the credibility of the witnesses.

The majority is persuaded by Father's claims that he was unable to stay at his previous employment because his department was being relocated to Minnesota and that he could not find similar employment within a one-hour driving radius to come to its conclusion that the trial court's decision was against the logic and effect of the facts and circumstances before it. Although I agree it is commendable that a father would want to live close to his children and be able to spend time with them, the only evidence provided to this court on appeal was a statement of the evidence drafted by Father's counsel. No tran-seript of the modification hearing at issue was included in the record.

The trial court, with its opportunity to see and hear the witnesses firsthand, is in the best position to judge their demeanor and credibility. In re W.B., 772 N.E.2d 522, 535 (Ind.Ct.App.2002). With the secant and one-sided record before us, I believe that the trial court was in the best position to judge Father's demeanor and credibility at the modification hearing, and its decision to deny modification should be given deference. I think this deference is especially important when the difference in the earnings upon which child support is based changes so radically.

Here, Father quit his position as a chemist, earning $46,000 per year to start *493his own company. In so doing, he voluntarily reduced his annual earnings to $16,200 in 2001 and $20,000 in 2002. He had no health or other problems that forced him to leave his previous job. He also received no better benefits or other perquisites to help indicate that his choice was a reasonable one. The trial court was therefore correct in distinguishing In re EM.P., 722 N.E.2d 349 (Ind.Ct.App.2000). Father testified that he left because his hours kept increasing, while his pay kept decreasing and because his department was being relocated. Appellant's App. p. 21. These stresses and conflicts are all too common in our current economy.

Under the facts and circumstances of this case, I do not believe that the trial court's finding that Father was voluntarily underemployed and its resulting decision to deny Father's petition to modify child support were clearly against the logic and effect of the facts and cireumstances that were before it. See Scoleri, 766 N.E.2d at 1215. Therefore, I would vote to affirm the trial court.