Dye v. Young

OPINION

BARTEAU, Judge.

Michael J. Dye appeals from the trial court's award of child support and attorney fees in a paternity action filed by Joyce Denise Young.

Two issues are raised, restated as:

1. Whether the trial court erred in ordering Dye to pay $110.00 per week child support; and
2. Whether the trial court erred in ordering Dye to pay Young's attorney fees.

CHILD SUPPORT

Young introduced into evidence a signed child support guideline worksheet wherein she listed her weekly gross income from waitressing as $170.00 and Dye's weekly gross income from his roofing business as $500.00 per week. Young's worksheet calculated guideline child support to be $163.50. Young also introduced a credit application in which Dye listed his take home pay as $22,-000.00 annually. Young testified that she believed Dye earned approximately $500.00 per week.

Dye did not introduce a child support guideline worksheet or any evidence directly establishing his weekly gross income. He introduced federal income tax returns for 1988-90, and 1992, but not for 1991. He testified that it was difficult for him to determine weekly gross income because of his expenses related to his roofing business. He also testified that Young made $300.00 to $400.00 per week as a waitress during the years they resided together.

Dye also presented testimony that he had legal child support obligations for three other children. Young did not factor Dye's preexisting support obligations into the child support guideline worksheet she prepared.

Dye contends that the evidence Young presented on the issue of Dye's weekly income was insufficient to support the child support amount ordered by the court. We reject Dye's contention that Young bore the burden of proving Dye's income.

Indiana Child Support Guideline 3(B)(1), Income Verification, provides that a child support worksheet shall be completed and signed by both parties and filed with the court. Child Supp.G. 3(B)(2) provides that the statements of income shall be verified with documentation. Young complied with the requirements of Child Supp.G. 3 by submitting a worksheet and income verification.

Dye did not comply with the requirements of Child Supp.G. 3, the commentary to which provides that if a party does not agree with the income claimed by the opposing party, then a separate, signed worksheet should be submitted to the court showing the differing opinion of the appropriate child support calculation. Dye not only did not file his own worksheet, he never provided the court with a figure he claimed to be his weekly gross income. Thus, the court would be well within its discretion to adopt the figures supplied by Young in fashioning its child support order. Any failure in the burden of proof as to income was committed by Dye, not Young.

The dissent contends that it is error to enter a support award unless both parties have signed and submitted a child support worksheet. If such were the case, any time a party refused to submit a worksheet, no support award could be entered until the refusal was remedied through contempt proceedings.

While Child Supp.G. 3(B)(1) does state that the parties "shall" file a worksheet, it does not state the consequence of failing to file one. The dissent assumes such a failure prevents a trial court from entering a support award. A more logical assumption is that it prevents the non-complying party *551from challenging the income figures arrived at by the trial court.1

However, because the trial court did not award the amount calculated by Young, and made neither findings concerning the income it attributed to each party nor completed its own child support worksheet, we are unable to determine whether the court in fact complied with the child support guidelines. Thus, we must remand to the trial court for clarification of its award. If the trial court complied with the guidelines, it should enter findings or complete a child support worksheet, detailing how it arrived at the $110.00 amount. The findings or worksheet should contain the figures assigned for income, child care, health insurance premiums and credit for Dye's support obligations to his other children as well as the percentage of support assigned to each parent. If the court deviated from the guidelines, it should enter findings or provide a worksheet demonstrating its calculations, as well as a written finding setting forth the factual basis for the deviation. Child Supp.G. 3(F)Q).

ATTORNEY FEES

Dye contends that the trial court erred in ordering him to pay $750.00 of Young's attorney fees when he did not challenge paternity of the children. He also contends that he should not be obligated to pay more than half of Young's attorney fees.

A trial court has wide discretion in awarding attorney fees in child support proceedings. It should consider: 1) the resources of the parties; 2) their economic conditions; and 3) their respective ability to earn an adequate income through employment. We will reverse a trial court's decision regarding attorney fees only for an abuse of discretion. Nelson v. Scalzitti (1990), Ind.App., 563 N.E.2d 166, 168.

The record adequately supports the trial court's order that Dye pay $750.00, or approximately 75%, of Young's attorney fees. Young presented evidence that Dye had superior resources and earning ability and the trial court was well within its discretion to credit this testimony and order Dye to pay this percentage.

The case is REMANDED to the trial court for clarification of its award of child support. The award of attorney fees is AFFIRMED.

CHEZEM, J., concurs. DARDEN, J., dissents with opinion.

. Child Supp.G. 3(B)(2) supports such an interpretation. While it states that income statements "shall be verified with documentation of both current and past income," the accompanying commentary states the requirement of verification is merely a suggestion to judges that they take care in determining the income of each party.