MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be regarded as Feb 17 2017, 8:42 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata, CLERK
Indiana Supreme Court
collateral estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT
Michael G. Ruppert
Lauren E. Harpold
Ruppert & Schaefer, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Krysten A. Overly, February 17, 2017
Appellant-Petitioner, Court of Appeals Case No.
29A02-1609-DR-2192
v. Appeal from the Hamilton Superior
Court
Mark E. Overly, The Honorable William J. Hughes,
Judge
Appellee-Respondent.
Cause No. 29D03-1310-DR-9886
Bradford, Judge.
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Case Summary
[1] Appellant-Petitioner Krysten Overly (“Mother”) and Appellee-Respondent
Mark Overly (“Father”) were married and had two children (“the Children”)
before Mother filed for dissolution of the marriage in 2013. In April of 2014,
the trial court issued a dissolution decree (“the Decree”) which reflected a
negotiated settlement between the parties. The Decree provided that the parties
would share legal custody of the Children, Mother would have sole physical
custody, and Father would pay $155.00 per week in child support and also be
responsible for several other financial obligations.
[2] In July of 2015, Mother filed a motion for a rule to show cause, alleging that
Father was in arrears in child support and his other obligations. The trial court
eventually found Father to be in contempt of court. In October of 2015, Father
petitioned the trial court to modify his parenting time and child support
obligation, alleging a significant change in circumstances.
[3] In April of 2016, the trial court held a hearing on outstanding motions and
issued its order in August of 2016. The trial court found a significant change in
circumstances—namely, changes in Mother’s and Father’s incomes—and
ordered that Mother pay Father $118.00 per week in child support, retroactive
to October of 2015. The trial court also found that Father owed Mother
approximately $22,000.00 in back child support and other unpaid obligations all
together, said amount to be reduced to two money judgments. Pursuant to the
trial court’s order, Father’s child-support arrearage of $5401.00 would be paid
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off with weekly payments of $100.00. Mother contends that the trial court
abused its discretion in ordering that she pay the child support amount dictated
by application of the Indiana Child Support Guidelines (“the Guidelines”) and
also in not ordering a deviation from the Guideline amount. Because we
conclude that, under the unique circumstances of this case, a modification of
the trial court’s order is warranted, we affirm in part and remand with
instructions.
Facts and Procedural History
[4] Mother and Father were married on June 15, 2000. The marriage produced
two children, M.O. and R.O. (“the Children”). Mother is a self-employed
financial planner and Father works in sales.
[5] On October 22, 2013, Mother petitioned for dissolution of the marriage. On
April 28, 2014, the trial court issued the Decree, which reflected a settlement
agreement negotiated by the parties. The Decree provided that the parties
would share legal custody, Mother would have sole physical custody, and
Father would have parenting time pursuant to the Guidelines or “as the parties
agree.” Appellant’s App. Vol. II p. 36. Father agreed to pay Mother $155.00
per week in child support and Mother agreed to provide the Children’s health
insurance. Father also agreed to be responsible for the following obligations to
Mother: (1) A monthly payment of $202.45 for his vehicle’s lease (which was
in Mother’s name), (2) a monthly payment of $300.00 for 105 months for his
portion of the marital debt, (3) fifty percent of all uninsured and unreimbursed
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medical expenses for the Children, (4) fifty percent of costs related to
extracurricular activities, (5) fifty percent of Children’s secondary-school-related
expenses, and (6) fifty percent of work-related child-care expenses.
[6] On July 27, 2015, Mother filed a motion for rule to show cause, alleging that
Father was in arrears in his child support payments and had failed to make
payments for the parties’ marital debt and Children’s expenses as agreed.
Approximately two months later, Mother filed a second motion for rule to
show cause, alleging that Father had relocated frequently without notice to her.
On September 29, 2015, the trial court found Father in contempt and ordered
him to pay $400.00 to Mother for attorney’s fees. On October 19, 2015, Father
petitioned for modification of parenting time and child support, alleging
changed financial circumstances.
[7] On April 26, 2016, the trial court held a hearing on pending motions. Mother
testified that Father had accumulated unpaid court-ordered obligations of
$30,196.10. On August 31, 2016, the trial court issued its order, which
provides, in part, as follows:
6. [Mother] is employed as a financial planner and experiences a
substantial variance in income from year to year. In the three
calendar years prior to dissolution she earned an average net gross
income of $142,684.00 per year or $2,744.00 per week. In the two
full calendar years and 2016 projected from actual income to the
date of hearing, she earned an average of $178,684.00 per year or
$3,436.00 per week. [Mother] listed her gross income on her
financial declaration at $4,006.00 per week after deduction for self-
employment tax. The Court finds the appropriate gross income to
use for [Mother] is $3,[43]6.00 per week
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7. [Father] has gross weekly income of $900.00 per week. In addition
he is provided a vehicle for work usage which the Court finds has a
reasonable value of $75.00 per week. The Court finds that [Father]
has gross weekly income of $975.00. The Court also finds that
[Father] was unemployed for a period of time after the dissolution
was entered but he is now employed full time.
8. [Mother] incurs work related child care expenses of $100 per week
for the minor children. And she incurs a cost of $51.00 per week to
provide medical insurance for the minor children. See, CSOW
submitted by [Mother].
9. The Decree of dissolution herein provides that [Father] will have
parenting time with the minor children as the parties agree and if
they fail to agree then Friday to Sunday every other weekend, one
evening per week not overnight, one half of the summer vacation,
one half of balanced calendar Fall, Winter and Spring breaks and
alternating major holidays per the guidelines. The parties have
added additional overnights by making the midweek visitation an
overnight and by extending weekend visitation through Sunday
nights. This results in 5 overnights per 14 day period, of which
there are 20.3 of those periods in an average age year after
consideration for summer visitation and extended fall, winter and
Spring Breaks. This results in an average of 150 overnights per
year in [Father].
10. [Father] has requested that the child support be retroactive to the
date he filed his Petition and the Court finds that this is
appropriate. Pursuant to the Decree weekly child support was
payable at the rate of $155.00 per week from [Father] to [Mother].
In addition, the parties agreed to waive the 6% rule and to each
share 50% of uninsured medical, dental and optical expenses, and
further, each agreed to pay 50% of agreed extracurricular expenses,
educational and work-related child care expenses. The parties
agreed to split only those extracurricular expenses for which there
was agreement in writing before the expense was incurred, and
educational expenses were defined as limited to books, supplies
and/or other school fees, field trips and other miscellaneous events
and school lunches. This was supported by a child support
guideline worksheet attached to the decree. (The Court notes that
while the parties agreed to pay child care outside of the decree the
child support worksheet included [$]131 per week in child care
expenses of which by the nature of the application resulted in
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[Mother]’s obligation under the worksheet being increased by
37.41% of that amount or $50.82 cents per week. In addition, the
parties’ child support agreement deviated substantially from the
guidelines regarding medical expenses with the potential result of
an increase in [Father]’s weekly child support obligation of up to
$13.50 per week. The parties do not set forth the justification for
their deviation in their settlement agreement and Magistrate Najjar
made no finding supporting a deviation from the guidelines in the
decree he entered herein on April 23, 2014.)
11. There has been a substantial and continuing change in
circumstances in the parties’ income so substantial that a
modification of child support is required. The Court finds that the
application of the Indiana Child Support Guidelines to the factors
found above results in a child support obligation of $118.00 per
week payable from [Mother] to [Father]. This child support
obligation is made retroactive to October 23, 2015, the first Friday
after the date [Father] filed his Petition to Modify.
12. [Mother] testified by way of her Exhibit 1 that between the
effective date of the child support obligation under the decree and
the date of the hearing that $15,810 in child support has accrued at
the rate of $155.00 per week. The Court finds that this results in a
finding that there had been 102 weekly child support payments due
between the date child support began and Friday, April 22, 2016.
The Court notes that the decree provided for an uncertain begin
date, the first Friday after [Father] moved out of the Marital
Residence. That date is not reflected in the record herein. Between
the date child support modification became effective, Friday
October 23, 2015 and Friday April 22, 2016, 27 weekly payment
dates elapsed. The Court notes that [Mother] testified that in the
time frame at issue the May 2014 to April 2016 [Father] paid a
total of $3,038.00 in child support. The Court finds an arrearage in
child support exists as follows:
Support from Decree to October 16, 2015
$155 per week for 75 weeks payable to [Mother] $11,625.00
Actual payments paid in the period at issue -$3,038.00
Unpaid support owed by [Father] $8,587.00
Support from October 23, 2015 to April 22, 2016
118.00 Per week for 27 weeks payable to [Father] -$3,186.00
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Net Arrearage Due [Mother] $5,401.00
13. [Father] was ordered to pay [Mother] $202.45 per month for lease
payment on the vehicle he was driving at the time of dissolution
until the lease term expired. He did not make any of those
payments, and he has accrued an arrearage of $3,238.84 which
should be reduced to judgment. The Court finds that for at least a
portion of the time [Father] was able to make those payments.
14. [Father] was ordered to pay to [Mother] the sum of $300 per month
to satisfy his portion of marital debt for 105 months or until the
debt was paid in full which ever [sic] was later. On the date of the
hearing [Father] was in arrears $6,990 in those payments. See
[Mother]’s Exhibit 1. Said sum should be reduced to judgment and
the Court finds that for at least a portion of the time [Father] was
able to make those payments.
15. [Mother] testified that during the period from the dissolution until
the hearing [Father] was delinquent in payments he agreed to make
for [e]xtra-curricular expenses in the sum of $558.00. See
[Mother]’s Exhibit 1. Said sum should be reduced to judgment and
the Court finds that for at least a portion of the time [Father] was
able to make those payments.
16. [Mother] testified that [Father] was in arrears the sum of $279.00 in
school [b]ooks and $185.00 in school lunches. School fees, books
and lunches are included in controlled expenses, and are therefore
part of the child support ordered paid beginning October 23, 2015.
[Mother] has failed to provide the Court with sufficient evidence to
adjust the sums in consideration for the period after the change in
child support. The Court finds that of the time passing from the
Decree to the date of hearing approximately 25% was after the date
of the change in support and reduces these sums to $209.00 and
$139.00. Said sum should be reduced to judgment and the Court
finds that for at least a portion of the time [Father] was able to
make those payments.
17. [Mother] testified that she expended $4,143.00 for work related
child care during summer period and school breaks. These
expenses were incurred for period prior to the change in child
support and [Father] was responsible for 1/2 of these expenses
pursuant to the parties’ agreed decree approved by the Court. Said
sum should be reduced to judgment and the Court finds that for at
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least a portion of the time [Father] was able to make those
payments[.]
18. [Mother] testified that she incurred $6,222.00 in AYS[1] expenses
from April 2014 to the date of the hearing. Of this sum $1,429.00
was incurred after the modification is support and said expense is
now included in the child support calculation. The court finds that
prior to modification [Mother] incurred $4,793.00 of which
[Father] was obligated to pay $2,396.50. Said sum should be
reduced to judgment and the Court finds that for at least a portion
of the time [Father] was able to make those payments.
19. Lastly there is the issue of medical expenses. The court finds that
as part of the modification of child support effective January 1,
2016, the parties shall apportion uninsured medical, dental and
optical expense pursuant to the 6% rule. In the calendar year 2016
[Mother] has incurred $274 in uninsured medical expenses for the
minor children which was included in her claim that she had
incurred uninsured medical expenses from April 2014 to April
2016. After that reduction [Mother]’s claim is for 50% of $1,886.00
or $943.00. Said Sum should be reduced to judgment and the
Court finds that for at least a portion of the time [Father] was able
to make those payments.
20. In summary, the Court finds that [Father] is in contempt of Court
for failure to make any payments toward the Nissan Payments,
Monthly debt payments, Work Related Child Care for AYS, Work
Related Child Care for Breaks and summer, Medical Expenses,
School Books, School Lunches and less than the required payments
for child support and extracurricular expenses. The Court finds
that while [Father] was unemployed for a period of time, he did
have the ability to pay the sums due during times of employment
and could have made at least some effort at partial payment at all
times. The Court finds that [Mother]’s requests should be granted
and judgment should be entered.
21. The Court finds that two judgments should be entered against
[Father] and in favor of [Mother]. First a judgment in the sum of
$5,401.00 for child support arrearage with interest thereon at the
1
At least one of the Children was receiving before- and after-school care from AYS, Inc. See Petitioner’s Ex.
1.
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rate applicable to child support arrearages. Second a judg[]ment
for $16,546.09 for past due sums [Mother] was ordered to pay
under the decree for Nissan payments, monthly debt payments,
work related child care for AYS, work related child care for breaks
and summer, medical expenses, school books, school lunches and
extracurricular expenses. As noted above these sums are valid for
the period [through] the date of the hearing herein, April 26, 2016
and have been adjusted to reflect the modification of child support
ordered herein retroactive to the first Friday following the date
[Father]’s petition to modify was filed.
22. [Mother] has requested her fees herein in the sum of $5,000.00. No
supporting documentation was offered to substantiate the request
other than the statement that she had incurred more than $5,000 in
fees enforcing the decree. Without more, it is difficult for the
Court to assess the reasonableness of such fees; The Court finds
that a fee of $2,500 would be reasonable to enforce the right to
payment and the entry of a judgment for past due sums. There
were other matters litigated which required legal assistance herein,
and the court is not finding that [Father] should be ordered to pay
for [Mother]’s fees as to those matters nor is the court making any
finding regarding the overall reasonableness of the fees charged to
[Mother] by her attorney. The Court finds [Father] should be
ordered to pay the sum of $2,500.00 to [Mother] within 120 days in
payment of a portion of the fees she incurred herein.
IT IS THEREFORE ORDERED ADJUDGED AND DECREED as
follows:
1. Parenting time is modified to provide that which the parties have
been doing. [Father] shall be entitled to exercise parenting time as
the parties agree but not less than every other weekend from Friday
at 6 until Monday morning unless specifically agreed by the parties
in writing, every Wednesday night from after school until
Thursday morning, one half of extended spring, fall and winter
[b]reaks due to the children’s balanced school calendar, and one
half of the summer break from school.
2. Child support is modified to provide that effective October 23,
2015 and thereafter, pending further order of the Court, [Mother]
shall pay child support to [Father] in the sum of $118.00 per week.
In addition, the parties shall divide extracurricular expenses as
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those are defined in the Decree of Dissolution, for agreed activities
only, with [Mother] paying 78% and [Father] paying 22%.
[Mother] as the primary custodial parent shall pay controlled
expenses and controlled expenses include public school fees, books,
supplies and school lunches. [Mother] shall continue to provide
medical insurance for the minor children. [Mother] shall pay the
first $1,660.00 per year in uninsured medical, dental, optical,
orthodontia and prescription expenses. Sums in excess of said
amount shall be paid 22% by [Father] and 78% by [Mother]. The
allocation of medical expenses set forth above shall apply to all
medical expenses incurred on or after January 1, 2016 until further
order. The provisions of the decree shall apply to all medical
expense incurred between the date of the decree and December 31,
2015. Child care expenses have been included in the child support
calculation and shall [no] longer be paid separately beginning
October 23, 2015.
3. Judgment is ordered against [Father] and in favor of [Mother] in
the sum of $5,401.00 with interest thereon [at] the rate applicable
to child support arrearage judgments from the date of this decree
until paid in full. [Father] shall be entitled to claim a credit against
this judgment in an amount equal to the difference between the
Court’s order of support herein against [Mother] and the sum
actually paid between Friday, April 29, 2016 and the date this
order was entered. The balance of this judgment shall be paid at
the rate of $100 per week beginning Friday September 9, 2016 and
continuing until this sum has been paid in full.
4. Judgment is ordered entered against [Father] and in favor of
[Mother] in the sum of $16,546.09 for sums due from [Father] to
[Mother] under the decree for Nissan payments, monthly debt
payments, work related child care for AYS, work related child care
for breaks and summer, medical expenses, school books, school,
lunches and extracurricular expenses through April 26, 2016. Said
judgment shall bear interest from April 26, 2016 until paid in full at
the rate applicable to judgments in the State of Indiana.
5. [Father] shall pay to [Mother] the sum of $2,500 as reimbursement
for fees incurred herein in prosecuting her action for contempt.
Said sum it to be paid within 120 days of the date of this order.
ORDERED THIS 31ST DAY OF AUGUST, 2016.
Trial Court Order pp. 2-11.
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[8] Mother contends that (1) the trial court erred in ordering her to pay child
support to Father and (2) even if application of the Guidelines indicated that
Mother should pay child support to Father, circumstances warrant a deviation.
Discussion and Decision
[9] At the outset, we note that Father has not filed an Appellee’s Brief. In such
cases, we do not need to develop an argument for Father, and we apply a less
stringent standard of review. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App.
2005). We may reverse the trial court if Mother is able to establish prima facie
error, which is error at first sight, on first appearance, or on the face of it. Id.
Child Support
[10] A trial court’s calculation of child support is presumptively valid.
Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind.2015). We review
decisions regarding child support for an abuse of discretion.
[Lovold v. Ellis, 988 N.E.2d 1144, 1149-50 (Ind. Ct. App. 2013)].
An abuse of discretion occurs when a trial court’s decision is
against the logic and effect of the facts and circumstances before
the court or if the court has misinterpreted the law. Id. at 1150.
When reviewing a decision for an abuse of discretion, we
consider only the evidence and reasonable inferences favorable to
the judgment. Id.
Mitten v. Mitten, 44 N.E.3d 695, 699 (Ind. Ct. App. 2015).
A. Base Child Support Calculation
[11] Mother argues that the trial court abused its discretion in ordering her to pay
“negative support,” or support paid from the custodial parent to the non-
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custodial parent. To support this argument, Mother relies in part on Grant v.
Hager, 868 N.E.2d 801, 802 (Ind. 2007), in which the Indiana Supreme Court
held that “there is a rebuttable presumption that a custodial parent is not
required to make child support payments … but that a trial court has authority
to deviate from that presumption in accordance with the Indiana Child Support
Rules and Guidelines.” Id. at 802.
[12] We agree, however, with this court’s conclusion in R.B. v. K.S., 25 N.E.3d 232
(Ind. Ct. App. 2015), that Grant’s holding has been superseded by rule.2 As
noted in R.B., the Indiana Supreme Court adopted amended Guidelines in
2010, including the following addition to Guideline 1: “Absent grounds for
deviation, the custodial parent should be required to make monetary payments
of child support, if application of the parenting time credit would so require.”
Moreover, Guideline 3(F)(1) was amended with the following sentence:
When there is near equal parenting time, and the custodial parent
has significantly higher income than the noncustodial parent,
application of the parenting time credit should result in an order
for the child support to be paid from a custodial parent to a
noncustodial parent, absent grounds for a deviation.
2
We are not convinced by Mother’s argument that Grant remains good law after the 2010 amendments to
the Guidelines. Although the parenting time happened to be unequal in Grant, that fact was not mentioned
in the Court’s analysis and was not a part of the holding, which was based solely on the fact that the custodial
parent was ordered to pay child support to the non-custodial parent. Grant, 868 N.E.2d at 803-04. Because
Grant’s holding applied to all cases where the non-custodial parent sought child support from the custodial
parent—not just those cases where parenting time was also unequal—the 2010 amendments superseded it
entirely.
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[13] In addition to arguing that Grant is still good law, Mother argues that the two
above amendments read together create a rebuttable presumption in favor of an
order of negative child support only in cases where parenting time is near-equal.
We cannot agree with this interpretation. Guideline 1 clearly states that the
custodial parent should be made to pay child support if the Guidelines so
dictate, without regard to how parenting time is shared. The relevant language
in the amended Guideline 3(F)(1) does nothing more than apply the general
rule to one particular set of circumstances, i.e., where parenting time is near-
equal and the custodial parent has a significantly higher income. The language
of Guideline 3(F)(1) does nothing to limit the general language of Guideline 1,
which, as mentioned, applies to all cases where the Guidelines dictate that a
custodial parent should pay child support to a non-custodial parent. Although
we are inclined to agree with Mother’s assessment that she and Father do not
equally share parenting time,3 this does not create a rebuttable presumption in
her favor. So, we are left with the question of whether straightforward
application of the Guidelines produces the child-support figure ordered by the
trial court, and Mother does not dispute that it does.
B. Deviation From Guideline Amount
[14] That said, Mother also argues that, even if application of the Guidelines
supports the trial court’s order, ordering the Guideline amount is unreasonable,
3
The commentary to Guideline 6 includes the following: “Parenting time is considered equally shared
when it is 181 to 183 overnights per year.”
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unjust, and inappropriate. In light of the unique circumstances of this case, we
conclude that a modification of the trial court’s order is warranted. Mother
notes that the trial court found that Father owes her almost $22,000.00 in
various obligations, including $5401.00 in back child support accumulated since
the dissolution in April of 2014. The trial court also found that Father had been
able to make some of the court-ordered payments that he missed, but had not.
Finally, the trial court’s finding in the appealed order that Father was in
contempt of court is the second time he has been found in contempt, the first
time occurring in September of 2015.
[15] While we affirm the trial court’s conclusion that Mother is obligated to pay
$118 per week in child support, we remand with instructions to order Mother to
apply those payments directly to Father’s debt, until satisfied in full, instead of
paying the money to him. At the same time, we instruct the trial court to
eliminate Father’s obligation to pay $100 per week against his child-support
arrearage.4 Given Father’s consistent history of failure (or refusal) to satisfy his
court-ordered obligations to the Children and Mother, we have our doubts that
he will begin to do so now, and our disposition essentially takes the option of
non-compliance out of his hands. With neither party required to make direct
payments (at least not until Father’s debt is satisfied), Mother will not be forced
to go to court again on the basis that Father is not making his.
4
This represents a net loss to Father of $18.00 per week as compared to the trial court’s disposition.
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Conclusion
[16] We affirm the trial court’s conclusion that Mother is obligated to pay $118.00
per week in child support. However, in light of the circumstances of this case,
we remand with the following instructions: modify the order to (1) apply
Mother’s $118.00 per week child-support obligation to Father’s entire
$21,947.09 debt to Mother until it is satisfied, at which point the child support
payment will be paid to Father; (2) require Mother to monitor the satisfaction of
Father’s debt, including the calculation of interest, and provide annual reports
to the trial court; and (3) eliminate Father’s $100.00 per week payment to
Mother. We affirm the trial court’s disposition in all other respects.
[17] We affirm the judgment of the trial court in part and remand with instructions.
Vaidik, C.J., and Brown, J., concur.
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