M.L. v. M.F. and M.Fu. (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 25 2015, 9:23 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Zachary J. Stock Zachary J. Stock, Attorney at Law, P.C. Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

M.L., September 25, 2015 Appellant, Court of Appeals Case No. 33A01-1505-DR-318 v. Appeal from the Henry Circuit Court M.F. and M.Fu., The Honorable Mary G. Willis, Appellees Judge Trial Court Cause No. 33C01-0807-DR-59

Bailey, Judge.

Case Summary [1] M.L. (“Grandmother”) has custody of the three children of divorced parents

M.F. (“Mother”) and M.Fu. (“Father”). Grandmother appeals a child support Court of Appeals of Indiana | Memorandum Decision 33A01-1505-DR-318 | September 25, 2015 Page 1 of 5

order entered upon her petition for child support modification. She presents the

sole issue of whether the trial court abused its discretion in determining Father’s

gross income available for child support. We reverse and remand.

Facts and Procedural History [2] In 2012, Grandmother intervened in a custody dispute between Mother and

Father and was awarded physical custody of two of the parents’ children. The

third child was placed in the custody of Father. Father was ordered to pay

Grandmother $25.00 weekly as child support. [3] In November of 2014, Grandmother was awarded the physical custody of the

third child. On December 10, 2014, Grandmother filed a petition seeking to

modify Father’s child support obligation. [4] On March 18, 2015, Grandmother and Father appeared at a hearing.

Grandmother testified that she had entered into a child support agreement with

Mother, whose gross income was approximately $500.00 per week. She offered

a child support worksheet indicating that Father’s weekly gross income was

$1,391.00. [5] Father introduced into evidence a letter from his employer, Carter Express,

stating that Father had changed from a full-time employee to a part-time

employee, effective February 18, 2015. Father, who holds a commercial

driver’s license, testified that he “did not dispute” the fact that his average

earnings had been $1,391.00 weekly. (Tr. at 6.) He explained that he had

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recently elected to become a “casual” employee, so that he could go to family

counseling and seek to regain custody of his children. (Tr. at 7.) He also

protested that he “can’t afford the $179.00 every week that they are asking for”

and didn’t know “if there is anything that I could do to lower that.” (Tr. at 9.)

Father subsequently testified that he had the potential of making fifteen to

eighteen hundred dollars per week. [6] The trial court completed a child support worksheet assigning $500.00 weekly

gross income to Father and $500.00 weekly gross income to Mother. Father

was ordered to pay $143.00 weekly as child support for his three children.

Grandmother appeals.

Discussion and Decision [7] Grandmother argues that the trial court erred in calculating Father’s weekly

gross income. Specifically, she contends that the order is inconsistent with

evidence that Father had been earning $1,391.00 weekly prior to voluntary

underemployment and that he had earning potential of up to $1,800.00 per

week. [8] We initially observe that Father has failed to file an appellee’s brief. Under

these circumstances, we do not undertake to develop an argument on his behalf,

and we may reverse upon Grandmother’s prima facie showing of reversible

error. Carter v. Grace Whitney Props., 939 N.E.2d 630, 633 (Ind. Ct. App. 2010).

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Prima facie error is error “at first sight, on first appearance, or on the face of it.”

Montgomery v. Faust, 910 N.E.2d 234, 237 (Ind. Ct. App. 2009). [9] Child support calculations are made utilizing the income shares model set forth

in the Indiana Child Support Guidelines. Sandlin v. Sandlin, 972 N.E.2d 371,

374 (Ind. Ct. App. 2012). Child support is based upon the premise that children

should receive the same portion of parental income that they would have

received if the parents and children were living in an intact household. Nowels

v. Nowels, 836 N.E.2d 481, 489 (Ind. Ct. App. 2005). A trial court’s decision

regarding child support will be upheld unless the trial court has abused its

discretion. Morgal-Henrich v. Henrich, 970 N.E.2d 207, 212 (Ind. Ct. App. 2012).

An abuse of discretion occurs when the decision is clearly against the logic and

the effect of the facts and circumstances before the court or if the court has

misinterpreted the law. Id. [10] The Indiana Child Support Guidelines define “weekly gross income” to include

actual weekly gross income of the parent if employed to full capacity, potential

income if unemployed or underemployed, and imputed income based upon “in-

kind” benefits. For example, a trial court may impute income to a parent that is

voluntarily unemployed or underemployed considering the parent’s work

history, occupational qualifications, prevailing job opportunities, and earnings

levels in the community. Meredith v. Meredith, 854 N.E.2d 942, 947 (Ind. Ct.

App. 2006). [11] Here, the trial court’s order provided in relevant part:

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[Father] recently worked for Carter Express as a driver and earned approximately $1,350 per week. That [Father] testified that he was capable of earning up to $1,800 per week.

That in mid February of 2015, [Father] voluntarily went on part time status with Carter Express and his income became significantly reduced.

That the Court finds that [Father’s] potential income is $500 per week and adopts the Court’s support calculation which is attached hereto[.]

(App. at 18.) [12] In light of the trial court’s factual findings, Grandmother has established prima

facie error. We reverse and remand for calculation of Father’s child support

obligation consistent with the Indiana Child Support Guidelines. [13] Reversed and remanded.

Baker, J., and Mathias, J., concur.

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