Hamiter v. Torrence

FRIEDLANDER, Judge,

concurring in result

I concur in the result reached by the majority, but I write separately because I find the discussion regarding whether the overtime pay should be included in Tor-rence’s weekly gross income unnecessary. The trial court’s entry memorializing the judgment commenced with a determination of Torrence’s salary that included the overtime pay. The court then explicitly recognized the appropriate Indiana Child Support Guidelines (Guidelines) amount based upon inclusion of the overtime pay. In short, the evidence in the settled record and the entry memorializing the judgment demonstrate that the overtime pay was included by the court. Torrence did not present evidence that the overtime pay was inconsistent or undependable, and Torrence did not file a brief on appeal to question inclusion of the overtime pay. In fact, as noted by the majority, the only evidence in the settled record discloses that the overtime pay was included on the Child Support Worksheet,3 and that the overtime pay was consistent and “would continue to be consistently available in the future.” Supplemental Record at 1. Thus, our discussion of the deviation from the Guidelines amount is dispositive.

The court’s error occurred when it deviated from the Guidelines amount it recognized as appropriate by stating:

Court orders support at One Hundred Fifty Dollars per week via Income w/hldg for the reason that Guideline support constitutes a windfall, is determined by or in part by reliance on overtime, w/o a showing of the continuity thereof.

Record at 10. “In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.” Ind. Child Support Rule 2; Matter of Paternity of A.D.W., 693 N.E.2d 576, 579 (Ind.Ct.App.1998) (quoting the rule). A parent seeking a deviation from the Guidelines amount must demonstrate that the presumptive amount is unjust or inappropriate under the circumstances. Matter of Paternity of A.D.W., 693 N.E.2d 576.

The statement of the evidence leads to only one conclusion: Torrence did not seek a deviation from the Guidelines amount and he agreed to the inclusion of the overtime pay in his average weekly income. As noted by the majority, ordering child support in accordance with the Guidelines amount cannot constitute a windfall to the child or to a parent.

I would reverse the judgment because the only evidence in the record leads plainly to a conclusion that the trial court erred *1255by deviating from the amount it calculated as the Guidelines amount. I do not believe that we should delve into the inclusion of the overtime pay.

. The trial court’s entry memorializing the judgment also ordered Torrence to sign the worksheet.