Ullery v. Ullery

ROBERTSON, Judge.

The State of Indiana appeals the denial of Kathy Ullery’s petition to modify (increase) the child support obligation of her ex-husband, Michael Ullery.1 The State raises one issue which does not constitute reversible error.

*215FACTS

The facts in the light most favorable to the trial court’s judgment indicate that Kathy and Michael were divorced on February 22, 1985. Kathy was awarded custody of the two children bom of the marriage, Melissa, bom May 14, 1975, and Kimberly, bom November 9, 1976. Michael was ordered to pay $50.00 per week in child support.

At the time the present petition was filed, Michael was gainfully employed. However, Michael quit his job after the petition was filed. He testified at trial that he quit because his employer was not treating him fairly. Michael denied that he quit his job as the result of the filing of the present petition. He also denied that he had chosen not to be gainfully employed and not to pay his support. The amount of support that Michael would have been obligated to pay under the Indiana Child Support Guidelines had he remained employed would have been $137.00 per week.

The trial court denied the motion to increase Michael’s child support obligation noting that Michael was unemployed. The trial court ordered Michael to notify the IY-D Division of the Prosecutor’s office when he becomes employed.

DECISION

We note at the outset that Michael has failed to file an appellee’s brief. When the appellee fails to file a brief, we may reverse the trial court if the appellant makes a prima facie showing of reversible error. Champion Home Builders Co. v. Potts (1989), Ind.App., 538 N.E.2d 280. However, although we may reverse upon a showing of prima facie error when the appellee fails to file an appellee’s brief, we are not compelled to do so and may, in our discretion, decide the case on the merits. S.M.V. v. Littlepage (1982), Ind.App., 443 N.E.2d 103, trans. denied. In the exercise of our discretion, we decline to invoke the prima facie error rule and choose to address this appeal on the merits.

The State argues that the trial court erred in failing to increase Michael’s child support obligation because Michael was voluntarily unemployed, citing Ind.Child Support Guideline 3(A). The State urges that the evidence indicates that Michael quit his job as the result of the filing of the petition to modify and intends to go back to work with his old employer.

The trial court’s modification of a support order will be reversed only for an abuse of discretion; that is, only when the trial court’s decision is clearly against the logic and effect of the facts and circumstances. Gerber v. Gerber (1985), Ind. App., 476 N.E.2d 531. In determining whether the trial court abused its discretion in modifying (or refusing to modify) a child support order, the court of review does not weigh the evidence or judge the credibility of the witnesses but, rather, considers only that evidence most favorable to the judgment, together with the reasonable inferences which can be drawn therefrom; and, if from that viewpoint, there is substantial evidence to support the finding of the trial court, it will not be disturbed even though the court of review may have reached a different conclusion had it been the trier of fact. Meehan v. Meehan (1981), Ind., 425 N.E.2d 157.

Where a parent becomes voluntarily unemployed or underemployed, the trial court must calculate support based upon a determination of potential income. Ind.Support Guideline 3(A)(3); Matter of Paternity of Buehler (1991), Ind.App., 576 N.E.2d 1354. The purpose for determining potential income is to discourage a parent from taking a lower paying job to avoid the payment of significant support and also to fairly allocate the support obligation when one parent remarries and, because of the income of the new spouse, chooses not to be employed. Id. However, as the Buehler court noted:

No mention is made of using child support as a tool to promote a society where all work to their full economic potential, or make their career decisions based strictly upon the size of potential paychecks. It is not our function here to approve or disapprove of the lifestyle of these parties or their career choices *216and the means by which they choose to discharge their obligations in general.

576 N.E.2d at 1356. Accordingly, in Buehler, we held the trial court’s increase in the father’s support order, based upon its finding that the father had the ability and potential to earn more than he was currently receiving from his existing job, to be an abuse of discretion. Id. We noted that the father was earning relatively the same amount he was earning when his relationship with the child’s mother was intact. Id.

In the present case, Michael testified that he quit his job because his employer was not treating him fairly. Moreover, he denied that he quit his job because of the filing of the present petition and he denied that he had chosen not to be gainfully employed and not to pay his support.

As noted above, we do not weigh the evidence or judge the credibility of the witnesses. The record supports the trial court's determination that Michael was not voluntarily unemployed or that his current decline in income was purposely brought about to reduce his support payments. See Garrod v. Garrod (1992), Ind.App., 590 N.E.2d 163. Therefore, we cannot conclude that the trial court’s decision not to increase Michael’s child support obligation was an abuse of discretion.

Judgment affirmed.

BAKER, J., concurs in result with separate opinion. RATLIFF, J., dissents with separate opinion.

. The State (the Indiana Department of Public Welfare as Assignee of Kathy Ullery) was a party in the action below. Therefore, the State has standing to prosecute this appeal. Ind.Appellate Rule 2(B).